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SECURITY AND PRIVACY OF CRIMINAL 
ARREST RECORDS 



HEARINGS 

BEFORE 

SUBCOMMIHEE NO. 4 

OF THE 

COMMITTEE ON THE JUDICIARY 
HOUSE OF REPRESENTATIVES 

NINETY-SECOND CONGRESS 

SECOND SESSION 
ON 

H.R. 13315 

TO PROVIDE FOR THE DISSEMINATION AND USE OF CRIMINAL 

ARREST RECORDS IN A MANNER THAT INSURES 

THEIR SECURITY AND PRIVACY 



MARCH 16, 22, 23; APRIL 13 AND 26, 1972 



Serial No. 27 




NOftTHlASTERN UNlVERSiTY SCHOOL of LAW LIBRAR? 



SECURITY AND PRIVACY OF CRIMINAL 
ARREST RECORDS 



HEARINGS 

BEFORE 

SUBCOMMITTEE M. 4 

OF THE 

COMMITTEE ON THE JUDICIARY 
HOUSE OF REPRESENTATIVES 

NINETY-SECOND CONGRESS 

SECOND SESSION 
ON 

H.R. 13315 

TO PROVIDE FOR THE DISSEMINATION AND USE OF CRIM- 
INAL ARREST RECORDS IN A MANNER THAT INSURES THEIR 

SECURITY AND PRIVACY 



MARCH 16, 22, 23; APRIL 13 AND 26, 1972 



Serial No. 27 



V4.i?V^* W-^')^ 




NORTHEASTERN UNIVERSITY SCHOOL of LAW LIBRARY. 



US. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1972 



COMMITTEE ON THE JUDICIARY 

EMANUEL CELLER, New York, Chairman 

PETER \V. RODINO, JR., New Jersey WILLIAM M. MCCULLOCH, Ohio 

HAROLD D. DONOHUE, Massachusetts RICHARD H. POFF, Virginia 

JACK BROOKS, Texas EDWARD HUTCHINSON, Michigan 

JOHN DOWDY, Texas ROBERT McCLORY, lUinois 

ROBERT W. KASTENMEIER, Wisconsin HENRY P. SMITH III, New York 

DON EDWARDS, Cahfornia CHARLES W. SANDMAN, Jr., New Jersey 

WILLIAM L. HUN GATE, Missouri TOM RAILSBACK, Ilhnois 

JOHN CONYERS, Jr., Michigan EDWARD G. BIESTER, Jr., Pennsylvania 

ANDREW JACOBS, Jr., Indiana CHARLES E. WIGGINS, California 

JOSHUA EILBERG, Pennsylvania DAVID W. DENNIS, Indiana ^ 

WILLIAM F. RYAN, New York HAMILTON FISH, Jr., New York 

JEROME R. WALDIE, California R. LAWRENCE COUGHLIN, Pennsylvania 

EDWIN W. EDWARDS, Louisiana WILEY MAYNE, Iowa 

WALTER FLOWERS, Alabama LAWRENCE J. HOGAN, Maryland 

JAMES R. MANN, South Carolina WILLIAM J. KEATING, Ohio 

ABNER J. MIKVA, Illinois JAMES D. McKEVITT, Colorado 

PAUL S. SARBANES, Maryland 

JOHN F. SEIBERLING, Ohio 

JAMES ABOUREZK, South Dakota 

GEORGE E. DANIELSON, California 

ROBERT F. DRINAN, Massachusetts 

Bess E. Dick, Staff Director 

Benjamin L. Zeienko, General Counsel 

Garner J. Cline, Counsel 

Herbert Fuchs, Counsel 

William P. Shattuck, Counsel 

Jerome M. Zeifman, Counsel 

Herbert E. Hoffman, Counsel 

Joseph Fischer, Latv Rension Counsel 

Howard C. Eolit, Corrections Counsel 

Donald G. Benn, Associate Counsel 

Franklin G. Polk, Associate Counsel 

Thomas E . Mooney, Associate Counsel 

Samuel A. Garrison III, Associate Counsel 



Subcommittee No. 4 

DON EDWARDS, California, Chairman 
JOHN CONYERS, Jr.. Michigan CHARLES E. WIGGINS, California 

ANDREW JACOBS, Jr., Indiana CHARLES W. SANDMAN, Jr., New Jersey 

JEROME R. WALDIE, California WILLIAM J. KEATING, Ohio 

EDWIN W. EDWARDS, Louisiana ROBERT McCLORY, Illinois 

PAUL S. SARBANES, Maryland 

Jerome M. Zeifman, Counsel 

Samuel A. Garrison III, Associate Counsel 

Alfred S. Joseph III, Assistant Counsel 

in) 



CONTENTS 



Page 
Text of H.R. 13315 IV 

Hearings held on: 

Mar. 16, 1972 _ . I 

Mar. 22, 1972 . ._ 31 

Mar. 23, 1972 61 

Apr. 13, 1972 10,3 

Apr. 26, 1972 13.5 

TestinionA' of: 

Cohen, Walter W., assistant district attorne}-, city of Philadelphia.-- 104 

Dale, Francis L., president, Cincinnati Enquirer 135 

Duncan, Charles T., attorney, Washington, D.C 31 

Gallati, Dr. Robert, director, New York State Identification and 

Intelligence System 47 

Gordon, Robert D., executive director. International Conference on 

Police Associations 125 

Katzenbach, Nicholas deB., vice president and general counsel, IBM 

Corp 3 

Miller, Herbert S., deputy director, Georgetown University Law 

Center Institute of Criminal Law and Procedure ' 15 

Neier, Aryeh, executive director, American Civil Liberties Union 153 

Santarelli, Donald E., Associate Deputy Attorney General for Criminal 
Justice, Department of Justice, accompanied by Richard W. Velde 

and Beverly E. Ponder J 61 

Statement of: 

Tamm, Quinn, executive director, International Association of Chiefs 

of Police 173 

Correspondence : 

Durham, Hugh M., Chief, Legislative and Legal Section, Office of the 
Deputy Attorney General, Department of Justice, to Hon. Don 
Edwards — 

May 15, 1972 ----.- 176 

May 23, 1972 181 

Edwards, Hon. Don, to Hugh Durham, Apr. 12, 1972 176 

Kugler, George F., Jr., attorney general of New Jersey to Hon. Peter 

H. B. Frehnghuysen and Hon. John E. Hunt, Apiil 18, 1972 188 

Turco, Wesley P., president. Associated Credit Bureaus of Illinois, 

Inc., to Hon. Robert McClory, Apr. 4, 1972 182 

Younger, Evelle J., attorney general of California to Hon. Don' 

Edwards and Hon. Charles E. Wiggins, Mar. 14, 1972 188 

Other materials : 

Burns Detective Agencj^, advertisement, "A Complete Scope of 

Investigative Services . . ." 183 

Committee To Investigate the Effect of Police Records on Employ- 
ment Opportunities in the District of Columbia, report, Oct. 26, 

1967 18» 

Edwards, Hon. Don, "Improper L>e of Arrest Records as an Invasion 

of Privacy," Congressional Record, Mar. 3, 1972 198 

Miller, Herbert S., "The Closed Door: The Effect of a Criminal Record 

on Employment With State and Local Public Agencies" 259 

Project SEARCH, Security and Privacy Considerations in Criminal 

History Information Systems, July 1970 201 

Retail Credit Co., the Fair Credit Reporting Act, December 1970 18.5 

Wilkins, Roger, "The Revolution in Law Enforcement Technology 
Has Produced an Information Monster That Threatens Oiir 
Privacy," Washington Post, Feb. 27, 1972 198 

(in) 



[H.R. 13315, 92d Cong., second sess.] 

A bill to amend title 28 of the United States Code to provide for the dissemination and use of criminal arrest 
records in a manner that insures their security and privacy 

Be it enacted by the Senate and House of Representatives of the United States of 
America in Congress assembled, That (a) title 28 of the United States Code is 
amended by inserting immediately after chapter 175 the following new chapter: 

"Chapter 177— DISSEMINATION OF ARREST RECORDS 

Sec. 

"3101. Dissemination by Federal officer or employee; only to law enforcement 

agencies. 

"3102. Prohibition of dissemination, maintenance and use of arrest records. 

"3103. Inspection of arrest records. 

"3104. Prevention of illegal dissemination or use; correction of incorrect arrest 

records. 

"3105. Court orders allowing dissemination, maintenance, or use in certain cases. 

"3106. Questions concerning arrest. 

"3107. Penalties. 

"3108. Definitions. 

"3109. Regulations. 

"3110. Effective date. 

"§3101. Dissemination by Federal officer or employee; only to law enforcement 
agencies 

"(a) No officer or employee of the United States or of any federally assisted 
law enforcement agency may disseminate in any manner any criminal arrest 
record to any person other than another officer or employee of a law enforcement 
agency. 

"(b) No officer or employee of any law enforcement agency may disseminate 
to any person, other than another officer or employee of a law enforcement agency, 
a criminal arrest record received from an officer or employee of the United States 
or of a federally assisted law enforcement agency. 

"§ 3102. Prohibition of dissemination, maintenance, and use of arrest records 

"(a) No officer or employee of the United States or of a federally assisted law 
enforcement agency, and with respect to a criminal arrest record received from 
an officer or employee of the United States or of a federally assisted law enforce- 
ment agency, no officer or employee of any law enforcement agency, may dis- 
seminate to any person a criminal arrest record — 

"(1) relating to an arrest which occurred more than two years before the 
date of such dissemination and concerning which there is no prosecution 
pending in a court; 

"(2) relating to an arrest concerning which the prosecuting attorney 
responsible for conducting any prosecution arising ovit of such arrest agrees 
no proseuction is warranted and that no criminal arrest record should be kept; 
or 

"(3) which is expunged, or prohibited from being maintained, used, or 

disseminated under a provision of the law of the State in which the arrest 

which is the subject of such record occurred, or by order of a court having 

jurisdiction with respect to such arrest. 

"(b) No officer or employee of any law enforcement agency may disseminate 

any arrest record specified in subsection (a) which was received by sucli officer or 

employee from any officer or employee of the United States or of a federally 

assisted law enforcement agency. 

"(c) Clause 1 of subsection (a) shall not apply to a criminal arrest record con- 
cerning an.y person who has been convicted of at least one felony under the laws of 
the United States or of any State. 

"(d) No officer or employee of the United States or of a federally assisted law 
enforcement agencj' may maintain or use any criminal arrest record which is 

(IV) 



prohibited from being disseminated under subsection (a) except that a court may 
maintain and use a sealed criminal arrest record. 

"(e) The dissemination, maintenance, or use of a criminal arrest record specified 
in svibsection (a), (b), or (d) may be permitted by or in accordance with a court 
order issued under section 3105. 

"§3103. Inspection of arrest records 

"Every person shall have the right to inspect any criminal arrest record con- 
cerning him maintained by any officer or employee of the United States or of a 
federally assisted law enforcement agency. The officer or employee of the United 
States or of such law enforcement agency whose dutj' it is to maintain criminal 
arrest records shall prescribe such reg-ulations as are necessary to enable anj* 
person, upon request and proper identification, to procure the criminal arrest 
record concerning such person maintained by such officer or employee at the 
time of the request. In addition, such officer or employee shall keep, and upon 
such request, disclose to such person the name of all persons to whom such officer 
or employee transmitted or communicated such arrest record during the six-month 
period preceding the request. 

"§3104. Prevention of illegal dissemination or use; correction of incorrect arrest 
records 

"If at any time a person has reason to believe that a criminal arrest record 
concerning him will be maintained or disseminated by any officer or emplo,vee of 
the United States or of any federallj^ assisted law enforcement agency, in violation 
of the provisions of this chapter, or that information in a criminal arrest record 
maintained by such an officer or employee is incorrect, such person may petition 
any United States district court to issue an order enjoining such maintenance or 
dissemination, or correcting such record. 

"§ 3105. Court orders allowing dissemination, maintenance, or use in certain cases 

"(a) The Attorney General or anj' officer of a law enforcement agency may make 
an application to a Federal court of competent jurisdiction for, and such court may 
grant, after a hearing, an order authorizing or approving the dissemination, 
maintenance, or use of a criminal arrest record, which is otherwise prohibited 
under section 3102, by the Attorney General or by an officer of a law enforcement 
agency, if the applicant can show by substantial and convincing evidence that 
there is a compelling public interest in such dissemination, maintenance, or use. 

"(b) Each application for an order authorizing or approving the dissemination, 
use, or maintenance of an arrest record shall be made in writing upon oath or 
affirmation to a Federal court of competent jurisdiction and shall state the ap- 
plicant's authority to make such application. Each application shall include the 
following information: 

"(1) the identity of the law enforcement officer making the application, and 
the officer authorizing the application; and 

"(2) a full and complete statement of the facts and circumstances relied 
upon by the applicant, to justify his belief that an order should be issued. 

"(c) The court may reciuire the applicant to furnish additional testimony or 
documentar}' evidence in support of tlie application. 

"(d) Orders granted under this section shall be sealed by the court. Custody of 
the orders shall be wherever the court directs. Such orders shall be disclosed only 
upon a showing of good cause before a court of competent jurisdiction and shall 
not be destroyed except on order of the issuing or denying court. 

"(e) Any violation of the provisions of this section maj' be punished as con- 
tempt of the issuing or denying court. 

"§ 3106. Questions concerning arrest 

"In responding to any question concerning anj^ arrest the respondent may 
consider such question to apply only to an arrest the record of wliich may be 
lawfulh' disseminated, maintained, or used by the Attorney General. No person 
shall be required to waive the right granted to him by this section nor shall any 
person be penalized in any manner for exercising such right. 

"§3107. Penalties 

"(a) Any person with respect to whom a criminal arrest record has been main- 
tained, disseminated, or used in violati(jn of this chapter shall have a civil cause 
of action against the person responsible for such violation and shall be entitled 
to recover from any such person actual damages and reasonable attorney's fees 
and other litigation costs reasonably incurred. Exemplary damages may be granted 
bj^ the court in apjDropriate cases. 



VI 

"(b) Whoever willfully disseminates, maintains, or uses a criminal arrest 
record knowing such dissemination, maintenance, or use to be in violation of this 
Act shall be fined not more than $1,000 or imprisoned for not more than one 5-ear, 
or both. 

"§3108. Definitions 

"As used in this chapter — 

"(a) The term 'law enforcement' means any activity pertaining to crime pre- 
vention, control, or reductif)n or the enforcement of the criminal law, including, 
but not limited to, police efforts to prevent, control, or reduce crime or to appre- 
hend criminals, activities of courts having criminal j urisdiction and related agencies, 
activities of corrections, probation, or parole authorities, and programs relating to 
the prevention, control, or reduction of juvenile delinguency or narcotic addiction. 

"(b) The term 'State' means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, and any territory or possession of 
the United States. 

"(c) The term 'Federal court of competent jurisdiction' means a United States 
district court or a United States court of appeals. 

"(d) The term 'criminal arrest record' means records and related data (including 
fingerprints) compiled by law enforcement agencies for purposes of identifying 
criminal offenders and alleged offenders and maintaining as to such persons 
summaries of arrests and the nature and disposition of criminal charges arising 
out of such arrest. 

"(e) The term 'federally assisted law enforcement agency' means a public agency 
which performs as its principal function activities pertaining to law enforcement 
and which is funded, in whole or in part, from grants received under the Omnibus 
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3731-3737). 

"§3109. Regulations 

"The Attorne.v General, after consulting with officers and members of State 
and lf)cal law enforcement agencies, shall prescribe such regulations as he deems 
necessar,y to carry out the provisicms of this Act. 

"§3110. Effective date 

"Tliis chapter shall take effect on and after the one hundred and twentieth day 
after the date of enactment of this chapter, except for section 310'2(d) which shall 
take effect at the end of the one year period beginning on the date of enactment 
of this chapter." 

(b) The chapter analysis of part VI of title 28 of the United States Code is 
amended by inserting immediately after: 

"175. Civil Commitment and Rehabilitation of Narcotic Addicts" 

the following new item : 

"177. Dissemination of Arrest Records". 



DISSE31INATI0N AND USE OF CRIMINAL ARREST 

RECORDS 



THURSDAY, MARCH 16, 1972 

House of Representatives," 

Subcommittee No. 4 of the 
Committee on the Judiciary, 

Washington, D.C. 

The subcommittee met at 9 a.m., pursuant to notice, in room 2237, 
Rayburn House Office Building, Hon. Don Edwards of California 
(chairman of the subcommittee) presiding. 

Present : Representatives Edwards, Waldie, Sarbanes, Wiggins, and 
McCloiy. 

Also present: Jerome M. Zeifman, counsel; Samuel A. Garrison III, 
associate counsel; and Alfred S. Joseph, IH, assistant counsel. 

]Mr. Edwards. The committee ^\^ll come to order. 

Toda}' Subcommittee No. 4 of the House Judiciary Committee 
begins its hearings on H.R. 13315, a bill to provide for the dissemina- 
tion and use of criminal arrest records in a manner that insures their 
securitv and privacv. 

(The text of H.R. 13315 is at p. IV.) 

Tragedies resulting from misuse of criminal records have been well 
documented. H.R. 13315 is not intended to deal with each of the many 
problems surrounding access to criminal records. Information relating 
to convictions and so-called criminal intelligence is beyond the bounds 
of H.R. 13315 and of this hearing. v 

The narrow scope of our present undertaking is not meant to in- 
diciate a lack of concern with other types of information relating to 
criminal procedures. Rather, it reflects the compelling importance of 
the damage done by arrest records and the belief that this issue can 
be most eflfectively dealt with if separated from other issues which 
are also important. 

For the 40 percent of male children who live in the United States 
today and who the President's Commission on Law Enforcement and 
the Administration of Justice estimates ^^^ll be arrested for a non- 
traffic offense sometime during their lives, the basic premise of our 
democracy that an individual is innocent until proven guilty could 
prove to be a hollow promise. 

A recent survey, for example, has shown that 75 percent of the 
employment agencies in New York Cit}^ refuse to recommend an indi- 
vidual vdih. an arrest record regardless of whether it was followed by a 
conviction. Another survey of 75 employers indicated that 66 of them 
would not consider employing a man who had been arrested for assault 
and acquitted. 

This record of the effects of arrest records must be viewed in hght 
of other statistics indicating, for example, that 45 percent of those 

(1) 



individuals arrested for felonies in New York State are released without 
charges ever being filed. 

During our hearings we intend to take a hard look at the arrest 
record problem and come up with a method of protecting individuals' 
privacy while at the same time recognizing and safeguarding the objec- 
tives and needs of law enforcement officials. We wish to focus not only 
on the theoretical issues of privacy and law enforcement, but on the 
concrete, practical problems of protecting the security of legitimate 
records and of resolving conflicts between often contradictory State 
laws. 

At the outset of these hearings I would like to make two comments 
in response to some questions which have alread}^ been raised as to the 
scope of H.R. 13315. 

First, I want to make clear that where there has been a conviction 
for either a misdemeanor or a felony, the bill does not prohibit the 
record of arrest from being transmitted as part of the conviction 
records, uses of which are be3^ond the scope of H.R. 13315. 

Second, while proposed section 3102(c) removes individuals con- 
victed of felonies from provisions prohibiting transmission and mainte- 
nance of records of arrests more than 2 years old, it does not similarly 
remove individuals convicted of only niisdemeanors. 

We begin these hearings with an awareness of the importance of the 
subject wdth which we are dealing, and a hope that our hearings will 
serve as a landmark in the eftort to reconcile the rights of the individual 
with the need of our society to stem the terrible wave of crime \\ hich 
presently confronts us. 

Mr. McClory? 

Mr. McClory. Thank you, Mr. Chairman. I want to congratulate 
you, Mr. Chairman, on your statement, to the general sense "of which 
I also subscribe. 

Also, I want to congratulate you on initiating these hearings, and 
I cannot think of any more important area for this committee to be 
investigating at this time than this area of the invasion of the right 
of privacy, at least with regard to the dissemination of arrest records 
which may indicate no guilt, no conviction, no adjudication of any 
kind whatsoever. 

I might say, Mr. Chairman, that I joined with my colleagues, 
Mr. AlcCulloch and Mr. Hutchinson, in sponsoring measures which are 
not quite so stringent as the measures that you have sponsored, but 
which relate to the identical subject, and which I hope, though they 
appear to be assigned to subcommittee 5 for hearing, that they can be 
reassigned to our subcom.mittee so that we consider all of this legisla- 
tion in this limited area of the effect on the constitutional right of 
privacy of the dissemination of arrest records and such information. 

In addition, I have examined the list of witnesses who are to testify, 
and I feel that I m.ay want to suggest additional testimonv which 
would be certain to cast further light on the practical eftects,"^ such as 
the reasons why law enforcement agencies might deem it essential 
that they be able to secure from such arrest records information, 
m contrast to the damage to individuals whose records are dissemi- 
nated, particularly in the case of those who are completely innocent 
or maybe whose records are even mistaken. We must do everything 
that IS possible for us to do legislatively to protect such individual 
rights. 



3 

Mr. Edwards. Thank 3'ou, Mr. McClory. The chair is mindful of 
the bill that you and the other members of the subcommittee have 
introduced, and of the considerable number of bills which have been 
introduced, not only on the subject, but on an area which is much 
larger than the scope of this particular bill. 

I also assure the gentlemen that we are mindful that these bills 
properly belong here in connection with this subject, and we hope 
that in the near future, in the continuing investigation that we are 
to conduct, they ^^^lll be appropriately assigned. 

Of course, these early hearings that we have scheduled do not 
constitute the limit of our inquiry into problems relative to arrest 
records. I am sure you know that if you have any suggestions for 
further testimony, they \vall certainly be accepted. We shall invite 
anybody that we feel will make a contribution. 

We are honored to have as our first ^ntness the Honorable Nicholas 
Katzenbach, Mr. McClory's and my friend for a number of years, 
a gentleman who can truly be called a distinguished American as a 
result of his achievements both in and out of Government. 

Having been educated at Yale University and Oxford University 
on a Rhodes Scholarship, Mr. Katzenbach began his Government 
career mth the office of general counsel of the Air Force. Within the 
Department of Justice, he served as Assistant Attorney General, 
Deput}" Attorney General, and in 1965 as Attorne}^ General. 

From 1966 to 1969, he served as Under Secretary of State. Mr. 
Katzenbach also has a distinguished career as an educator, having 
served on the faculty of the Yale University Law School, and the 
University of Chicago Law School. 

Mr. Katzenbach currently is "sdce president and general counsel of 
the IBM Corp. Mr. Katzenbach, we welcome you. We understand 
that you do not have a prepared statement, and we shall proceed 
as you so A\-ish. 

TESTIMONY OP HON. NICHOLAS KATZENBACH, VICE PRESIDENT 
AND GENEHAL COUNSEL, IBM COUP. 

Mr. Katzenbach. Thank you, Mr. Chairman. Let me, if I may, 
briefly summarize my thoughts on the subject and then respond to 
any questions which 3'ou or ]Mr. McClor^^ may have. 

I am delighted that this committee is concerning itself with both 
the problems of dissemination and collection of information and 
particularly ^nth this one area, which I think is particularly im- 
portant, the dissemination of arrest records. 

As we create the capacity to gather files and rapidh' transmit 
information, it seems to me that it is very important for members 
of the legislative branch to consider what the consequences of this 
may be with respect to its impact on privacy, and to set up various 
rules as to what information can be gathered, can be stored, to whom 
it can be distributed and for what purposes. 

In the absence of tliis, the tremendous capacity simply to collect 
and disseminate information does seriously invade the people's right 
to privacy. Secondly, it can even inhibit effective law enforcement 
or the effective use of the information, simply by not ha^nng 
thought through the questions as to why we have this information, 
how should it be properly used, who can have access to it and use it. 



So, I am delighted "\ntli. the concern here and other policies of the 
Congress with this problem. I congratulate you for trying to think it 
through. It is a difficult problem to think through, but the technical 
means for the storing and controlling and dissemination of informa- 
tion are at hand. 

If we can be wise enough in our society to determine how it is to 
be used, we have the technical means, I believe, to control that and to 
make sure that it is used for proper purposes. 

I am general!}' in sympatlw with the bill you have introduced, Mr. 
Chairman, with respect to arrest records. Let me state some general 
principles on this. 

In the first place, the statistics wliicli 3"ou cited from the Crime 
Commission Report, which I had the honor to chair, were somewhat 
shocking statistics. About one out of every two people, predictably, will 
be arrested for nontraffic offenses. 

I suspect the figure ma}' be even higher, it is difficult to guess what 
the statistics are. I would add to that, that I figure those to be nine 
out of every 10, if you are talking about young, black males, so that 
there is involved some other social factors in our society. 

The second point that I would like to make is that I see almost no 
reason for arrest records not followed by prosecution, where charges 
are dropped, dismissed, or whatever the situation may be, I see no 
reason for that information to be disseminated, other than to law en- 
forcement officials. 

Modify this, as you do in the bill, if there has been conviction; then, 
I think that the arrest records, certainly the conviction records can be 
appropriately disseminated for various purposes other than law en- 
forcement. For some arrest records, it is perhaps more appro})riapriate 
only if there is a felony conviction as the bill provides. 

So, as far as the use of that kind of information outside law enforce- 
ment, I can see very little justification for disseminating it. 

With respect to arrest records, I can see even within law enforcement 
really no justification for keeping, storing, and disseminating arrests for 
misdemeanors. It does not seem to me that from the point of view of 
need for that information for law enforcement, there really is any 
utility at all. The only conceivable utility would not be at the investi- 
gation stage, but would come in terms of the possibihties of the court 
wanting that information for sentencing purposes. 

But even there, I think that the damage done by storing misde- 
meanor arrests really outweighs the need for that kind of information 
on the part of a court, where the arrest did not result in any kind of 
further prosecution. 

I have more reservation about felony arrests with respect to dis- 
semination to law enforcement officials. Perhaps not all felonies, but 
perhaps w^th respect to the more dangerous felonies, there may be some 
purpose in their distribution even absent a conviction. 

This is an area which needs serious consideration. I don't have great 
con%dctions about it, but I can see situations where it might be ap- 
propriate to inquhe. I vWll give you two sorts of examples. 

One, you are starting with the proposition that law enforcement 
officials rarely arrest on a felony charge without having pretty serious 
reason to believe at that time that the person has committed a particu- 
lar crime. 

Now, let me give you the situations that I have in mind. If I were to 
find a person arrested three times on a felony charge involving guns. 



and no further prosecution, I would 'wish to inquhe, if I were the law 
enforcement official, why that was, because that would look to me as 
though there was a corrupt i)olice department, or a corrupt judiciary on 
that kind of a record. I am concerned somewhat about the organized 
crime aspect of this, with, respect to arrests for serious offenses. 

I think another situation might be where there is a crime invohnng 
assault, and the police department is looking for a person in connection 
\\ith the crime. They want to get a record and it might be important for 
them to know that this man had a prior arrest, even though no con- 
viction followed, for armed robbery. It might tell them that at least 
there was the possibility when looking for tliis man that he might be 
armed and might be dangerous. 

There are those kindt> of considerations where the inquiry can be 
legitimate and with, a legitimate reason. 

To make another general statement, 1 would proliibit an}^ distribu- 
tion to anyone, including law enforcement officials, of arrest records, 
unless the person making the distribution could also state the disposi- 
tion of that case and the reasons. 

I sa}^ this for two reasons. It seems to me only fair that this be done, 
but secondly because the conditions in many of our States -vnth respect 
to records are absolutely horrible. 

There is some incentive needed to get these records in some kind 
of decent shape. In the city of New York, where I now live, and 
man}^ other places, 3'ou simply cannot find out what has happened 
after an arrest was made. 

They have never caught up with it, it is never entered on the 
papers, it is floating up there in then* estimation and never entered in, 
and you cannot discover the disposition of it. 

Thirdh^ I think that it is important for the people to have the 
right, as is provided in this bill, to inc^uire as to whether or not any 
arrest or conviction records exist, and have an opportunity to correct 
those records if they are mistaken, or if the disposition of that case 
is mistaken. 

I also think that it is important, if a bill of this sort is to be enforced, 
that there would be a record kept, as is provided in 3103, to whom 
information has been disseminated. 

It is not clear to me exactly what is intended b}^ this. I think that 
the only real way in which you can disseminate that information or a 
record of this kind would be that it was disseminated to individuals, 
if 3^ou want, in the Chicago police force. 

I doubt that you can follow it further, I doubt that you can know 
everyone in the Chicago police who has seen this record. I think that 
you can keep a record of where it is disseminated. I have some reserva- 
tions about disclosing that fact to a person, when he inquires, if that 
matter is still under active investigation by the police force involved. 
Other than that, I think that you should have access to know to 
whom it has been disseminated. 

I would recommended that you consider that possibilit3\ Again I 
have in mind as much organized crime as I have any other area of 
endeavor. 

Finally, I would think that the committee might -w^sh to consider 
the possibility of making a record on the part of the disseminating 
agency, not of the groups that it is disseminated to, but for what 
reason that information was given. 



6 

It seems to me that there is some merit to making the person who 
inquired state the reason for the inquiry. I would think that those 
reasons would tend to fall into two, three or four general categories, 
which I would think would be permissible. 

But, if it is wanted for anything other than that the court wants 
it for purposes of probation and parole or that there is an active investi- 
gation involving this person on a particular crime, if it falls outside 
of that kind of legitimate category then I think that they should 
be required to make a very specific statement as to why they want 
this information to see wh}'' they feel they need it. 

I would recommend to you that you consider not only the possibility 
of what information was given, but to whom it was given, and try to 
create some sort of record here as to why people need this information, 
which I think would be valuable in itself, but would also give you 
more reason to be able to amend and modify or change a law of this 
type, if it should be enacted. 

I am in general support of the bill. I think that it is very important 
to concentrate on arrest records. As I said, I see very little reason 
for dissemination except in unusual circumstances or serious offenses, 
then really only to law enforcement officials. 

I will add one other word. I think that if you look at the reason why 
arrest is made — we are talking felonies — then j^ou say, why is there 
no prosecution of a felony. I think that there are three normal situa- 
tions that occur. 

One, the charge is reduced to a misdemeanor and a plea is taken. 
It is quite normal procedure that in a felony arrest the charge is 
dropped in return for a plea on a misdemeanor. 

Secondly, as obvious, is the case of mistaken or insufficient e\'idence 
to prosecute. This has always been a matter of concern to me. There 
is not the problem of guilt or innocence, but the problem that the 
evidence that they have is tainted. Therefore, prosecution becomes 
impossible in the judgment of the prosecuting attorney. The fourth 
possibility which occasional!}^ occurs in our societ}', is influence of 
one kind or another and the charges are dropped for that reason. 

Mr. McClory. May I ask one question? I think that there is one 
other reason, and I wanted to allude to it, because you had made 
reference to the area of organized crime, where charges may be dropped 
even though there is the use of a gun, because of corrupt officials. 

Isn't this the case, and wouldn't it be another reason, that in the 
case of organized crime, frecpiently threats that are made, intimidation, 
even the harming or destro3'ing or the assassination of the witness 
against the person, not to give evidence and it disappears. 

Wouldn't this be a case where you would want to apply the same 
principle? 

Mr. Katzenbach. It is, because of the possibility of those situations, 
but I still concentrate only on felony offenses that there may be 
some utility to that information in connection with other crimes. 

I think that this is really all of the general items that I have to 
comment on. 

Mr. Edwards. Thank you, Mr. Katzenbach. You have a time 
problem this morning, isn't that correct? 

Mr. Katzenbach. Yes. 

Mr. Edwards. What time do j^ou have to leave? 

Mr. Katzenbach. Before 10 o'clock. 



Mr. Edwards. This is a huge and compHcated problem, and the 
more we get into it, the more we reahze how compHcated it is. In 
your capacity as Attorney General, and general counsel for IBM, 
I am sure you have become familiar with the sophisticated technicjues 
which can be employed with respect to computers and data processing, 
memory banks, and so forth. 

Do you think that it is technologically possible to achieve the 
objective of this bill, which is a monitoring of existing arrest records 
and an automatic cancellation or purging after 2 years? 

Mr. Katzenbach. Yes. 

Mr. Edwards. Do you think it is? 

Mr. Katzenbach. Yes, I think that it is entirely possible . 

Mr. Edwards. Would the State agency in charge of records have 
to have a computer to implement this requirement? 

Mr. Katzenbach. I don't know that I can answer that, but it is 
a good deal easier if your information is stored on a computer. It is 
much easier to expunge information that is there, and to expunge it 
automatically, than it is if 3^ou have to go through a bunch of file 
drawers to find the information as far as taking it out of the system 
is concerned. That is a relatively easy job to do. 

You can put it in and you can take it out, you can add to it the 
disposition of it, you can do a great deal with that. 

Mr. Edwards. So you have no problem with the computer? 

Mr. Katzenbach. You have no j^roblem with that. You always 
have the problem that the information that 3^ou have put in in the 
fu'st place is correct. That is something that the computer doesn't 
know. 

Mr. Edwards. This bill would place a rather important, new respon- 
sibility on the disseminating agency. If it became a law, both criminal 
and civil liability could be imposed where violations occurred. Would 
not it require every criminal record to be reviewed rather carefully, 
as it was, shall we say, mailed out? 

Mr. Katzenbach. Yes, I would assume actuall}^ Mr. Chairman, 
that it would not get mailed out very much. I would assYime that 
this kind of record is simply going to go out to a terminal or a printer 
wherever the asking agency is. It would go straight over the phone 
lines. 

I would suppose that what you would v. ant would be to have a 
record of who requested, who authorized that information, and also 
who authorized its release. That can be put right into the computer 
itself, so that you get the information and you can print out everyone 
who has had access to it, directly from the computer. 

Now, you can't control the dissemination of what you put out at 
the other end. You are back to a paper problem. If that information is 
distributed there by the police force, copies of it xeroxed are given to 
Jack Anderson, or whoever, it is the same problem that occasionally 
is experienced in Government. You do know who had it, you do know 
it was the Chicago police force, that it was given to Captain so and so, 
authorized by so and so, you can take it that far fairly easily, as long 
as it is in the system, you can control it. Wlien it gets into a piece of 
paper it becomes rather difficult to control. 

Mr. Edwards. Wliat is your experience as to the availability of 
arrest records to credit people or possible employers outside of legiti- 
mate law enforcement? 



8 

Mr. Katzenbach. I tliink that they may be generally available, 
certainly credit people ask for it and get it. 
Mr. Edwards. Certainly not from the FBI? 

Mr. Katzenbach. They get it from the local police. I don't believe 
tliat they take it out of the system, but they get it from the local 
police force which provides it. It is public information, you can go 
down and get it. 

The credit peojile go down to the police and ask them for a police 
record on John Doe, then they can disseminate it to everyone who 
wants that information, unless it is controlled. 

Mr. Edwards. I believe that in 1969 a law was passed providing 
that the FBI or the Attorney General can cancel the exchange of 
records if dissemination is made outside the receiving department or 
related agency. So they do have power to cancel if the information 
is misused. 

Mr. Katzenbach. Yes, and the FBI does make some information 
available, they do it under the statute with respect to national banks, 
if I remember. Also to the securities industry they make finger prints 
and arrest records available. 

Mr. Edwards. I have one last question before I yield to Mr. 
Wiggins. Do you think that it would be an unacceptable burden on 
the FBI if they had to comply with the general provisions of this 
proposed law? 

Mr. Katzenbach. No, I don't believe it would be, Mr. Chairman, 
although I would suspect that they would regard any additional 
added duties as a burden, and be somewhat opposed to anj^ additional 
burden. 

I think that it is quite copeable if it is handled in the way that I 
suggested, that is within the system. 
Mr. Edwards. Mr. Wiggins. 

Mr. Wiggins. Mr. Katzenbach, there are as many potential agencies 
collecting information as there are law agencies around the country, 
hundreds and hundreds, and private agencies are collecting this data. 
Accordingly, anything we enact will be difficult to enforce at best, 
because of the simple magnitude of the job. What would be your 
reaction to a different approach which simply prohibited any agency 
except one to retain this information, this being perhaps the FBI or 
some similar Federal agency. 

As you know, it lends itself to computerization and instant printout 
which would be available to any agency on an "as needed" basis, but 
it need not be maintained by them. Would you comment on that 
please? 

Mr. Katzenbach. You are already moving in that direction to some 
extent because of the massive amounts of information that can be 
stored. Many law enforcement agencies now share a computer that 
they put their information in, and share those facilities. 

I think that it is technically feasible. The difficulty with what you 
propose, is that it makes every other law enforcement agency de- 
pendent on the FBI, and I don't know that it would be welcomed by 
the FBI and I am sure that it would not be welcomed by many of the 
law enforcement agencies, at this time. 

At this time, I am not really opposed to it, but the notion of getting 
more control by centralizing information in fewer places, even if not 
taken to the extent that you suggest, would make the law enforcement 
agencies' problems a lot easier. 



9 

The important thing is to get over the idea, that all this information 
should not be disseminated to private parties. You are going to have 
some of it happen anyway, but if you begin, at least, with the ethos 
that it is not necessary, that it should not he done, that it is Avrong 
to do it, even with some violation you are a good deal better off than 
you are today. 

Mr. Wiggins. You indicated in your testimony, Mr. Katzenbach, 
that there are appropriate cases where a man's arrest record ought to 
be re\dewed by an agency in connection with his quahfications to 
perform a particular function. I am sure that in your capacity as 
general counsel or Attorney General, you would be interested in such 
records, as would be a U.S. attorney. 

Mr. Katzenbach. To tell you the truth. Congressman, I had this 
eliminated from our job applications when I was Attorney General. 
We used to ask for arrest records, and I said, let's take this question 
off. 

Mr. Wiggins. I don't doubt that you took it off, but I would just 
expect that if you ran a background check, whether you asked the 
applicant that question or not, it would reveal perhaps that informa- 
tion as being conceivably germaine to your inquiry. 

The problem, if there is any, is mainly one of public attitude. 

My point is this, if there is any legitimate use for such information, 
then there is a problem posed by the provision of the bill requiring that 
it literally not be maintained for any purpose after a certain period 
of time, if the case were disposed of and it did not result in a conviction. 

Wliat is your reaction to this notion that there would be literally 
a destruction of arrest records after a certain period of time. 

Mr. Katzenbach. I can think of many instances where they really 
should be. 

Mr. Wiggins. On a selective basis? 

Mr. Katzenbach. I will go again to the arrest for misdemeanor 
arrest and no conviction. After a period of time, I don't think that 
has any business being there. There is more damage involved in the 
potential use of that than the utility of really having it. 

This has been quite frequent in juvenile cases. After a passage of tirne 
you do seal any arrest records. You may even seal convictions in 
these instances after a period of time. Really, if you have a person 
over 25 and if he has gone for 5 or 10 years without any offense, you 
are pretty safe on it. 

Mr. Wiggins. I think the problem is one of selectivity in the 
analyzing of arrest records. It is very difficult to generahze in the case 
of all arrest records. 

Now, we talk in the bill about dissemination of all arrest record 
information to law enforcement agencies, public agencies. I am now 
concerned about the problem of civil matters, ci\dl litigation, that is, 
when the arrest record may be germaine to a pending civil case, auto 
accident records, or information as to past arrest records. Do you 
think that they should be barred for use m civil litigation, not subject 
to subpena, for example? 

Mr. Katzenbach. Not all of them, not in those circumstances, 
but it seems to me that there is discretion, in terms of what records 
should be made available, whether that information could be gotten 
elsewhere, because a lot of this information by investigating agencies, 
Federal investigatmg agencies is not made available for civil litigation. 



10 

The Department of Justice declines to make it available. The general 
rule is, as I recall, that the substance of that information is ascertain- 
able in other ways, and that it will not be gotten; for example, FAA 
investigations in an airplane crash. Normally, that information is 
not made available, at least those parts which can be gotten through 
testimony from people, in essence, who talk with the FAA. 

Mr. Wiggins. A final question, then I shall yield to the next member. 
That is, what is an arrest record? In my experience, a police officer 
making an arrest will make a report of the facts and typically the 
disposition of the case, at least insofar as that police officer is concerned, 
is noted on that report. This is frequently described as an arrest report, 
but it is not a rap sheet, as we call it, since it relates to a particular 
offense, but the report often is used by a police officer to refresh his 
recollection and testify in a trial. 

Perhaps it is maintained by a police agency for a long period of 
time, I don't know that fact, but I think that it is conceivable that 
they do need it. Do you think that this information should be included 
within the definition of an arrest record and that we should proscribe 
its dissemination? 

Mr. Katzenbach. I have in mind the arrest records. When you 
pick up a person, he is arrested and is usually booked and arraigned 
on something, and these two acts usuall}^ go together quite rapidly 
and should. 

A record of a person who is arrested by police, fingerprinted and 
then released and never arraigned, I think is a more sensitive record 
in a way, than if there is enough information for the prosecuting 
attorney to charge. 

Mr. Wiggins. I gather 3'our answer to be that we should not merely 
define arrest records to exclude those reports? 

Mr. Katzenbach. I don't tliink that they should be disseminated. 
Really, if it does not get to the point where the prosecuting attorney 
thinks that there is any point to arraign, then I would think that that 
report ought to be ver}^, very closel}^ kept. 

Mr. Wiggins. Finally, sir, what about court records? They are in 
the public record in the sense that they are in court, and their disposi- 
tion is noted in some sort of records. 

As far as I know, the record of every case is open to public inspection, 
should that be included within the definition of arrest records or 
should that be excluded? 

Mr. Katzenbach. I think that it should be included. I said in my 
testimony that one tiling that I felt very strongly about was that 
3^ou should not disseminate any arrest records without the disposition 
of that matter being disseminated at the same time. 

One of the difl&culties there, 3^es, you do have a court record on 
this over here, and it never catches back up with your arrest record 
over there. So if you look at the arrest record you don't know what 
happened to it, without going through all the files in the court to 
find out what happened. 

That information ought to be gathered together, and one wa}^ of 
forcing it is to sa}^ you can never disseminate arrest records without 
disseminating the disposition of that as well. 

Mr. Wiggins. I am quite sure you agree that we should do nothing 
that would interfere with legitimate activities of agencies which 
collect data for statistical purposes. 



11 

Air. Katzenbach. No, I have seen the need to do with, statistical 
purposes, that reall}' involves or does not involve anj^thing more than 
numbers. 

Mr. Wiggins. That is right, however, just as an aside, I think that 
we are going to have to tighten up the language in this act, to be sure 
that we are not including that problem inadvertentl}'. I am finished. 

Mr. Edwards. Mr. Waldie? 

Mr. Waldie. I did not understand in what areas you believe 
arrest records have a proper purpose for private parties. Is there 
any area? 

Air. Katzenbach. Without a con^dction on anything? 

Air. Waldie. Just arrest records with no con^dctions? 

Air. Katzenbach. I don't see any. 

Air. Waldie. In what areas do arrest records mth no convictions 
have a proper purpose for public parties? 

Air. Katzenbach. I would think conceivably in terms of what the 
police call "AIO," if this is the kind of crime that he has been con- 
victed of before, or arrested for before. I would think conceivably for 
bail determination. 

Air. Waldie. Why bail determination? 

Air. Katzenbach. If I had a man up charged with armed robbery, 
and I found out that he had been arrested tmce before for armed 
robbery, because it is a felony — again I want to get rid of 
the misdemeanor • 

Air. Waldie. Wliy would that not be important to the employer 
who has a bank with a lot of cash? 

Air. Katzenbach. Simply the arrest records? 

Mr. Waldie. Yes. Wouldn't it be nice for him to know the man's 
"AIO," that he has been arrested for armed robbery. It would be 
helpful to them in performing their duties. 

Air. Katzenbach. I am sure that the emploj^er would take it into 
consideration, and probabh' not give a job to him, but that bothers 
me. 

Air. Waldie. Does it bother you that the judge would take it into 
consideration and not admit him to bail? 

Air. Katzenbach. He has a specific charge in front of him then, 
and the employer does not. 

Air. Waldie. But, would his past conduct have bearing on the 
specific charge in front of him? 

Air. Katzenbach. I think that most courts would want to take 
that into consideration. 

Mr. Waldie. I think that they would want to also, but what I am 
trying to get straight is whether we should permit them to do so. I 
am personnaly inclined toward 3'our intial assumption that no ar- 
rest records without a conviction ought to be disseminated among the 
private sector. 

I am not quite sure I understand the distinction that you are making 
with the public sector, but let us go on with the other distinctions. 

Air. Katzenbach. I know, I believe that arrests for felonies are 
very rarely made without sufficient e\ddence. 

Air. Waldie. The moment that you make these distinctions 3'ou 
make it more difficult for me to continue to support my conviction 
that they should not be disseminated to the private sector. 

Air. Katzenbach. I think that this ma}' be true. But at the same 
time you have to fit together the private sector with a particular 

78-242 — 72 2 



12 

crime, which is what 3'ou sought to do in your bank illustration to 
make the information relevant. Conceivabh^ there are some situations 
of that kind. 

But, if you take the same private employer, you take the same 
felony, armed robbery, and I suppose you could take some other 
felonies connected with banks, and this would have some importance 
to the banker. There would be a lot of times where there would be no 
importance to that bank. 

Mr. Waldie. There would be a lot of crimes that would have no 
bearing on the modus opperandi of their selection, but the police 

Mr. Katzenbach. The police would want to make the inquiry. 
Perhaps you could make the inquiry, have there been any arrests for 
bank robbery. If the charge was rape, and you are now talking crimes 
quite unrelated to that, it does not do the police any good to know that. 

Mr. Waldie. For what other public uses do you think that we ought 
to permit arrest records without convictions to be considered? How 
about the emplojnnent of a police officer with arrest records which 
did not result in convictions, should they be available for that purpose? 

Mr. Katzenbach. I am not really sure. What was going through 
my mind, if it is quite recent it would be some reason, but if it is 
quite old, I would think that it would not make a difference where 
there was never a conviction. 

Mr. Waldie. Would the same distinction apply to the modus 
opperandi of bail, if they are old arrest records? 

^Ir. Katzenbach. After a period of time, I would think that they 
would have no bearing. 

Mr. Waldie. Would the same distinction apply to the private 
sector, for a man who employs security guards, should he have the 
right to inquire as to whether his people have been arrested? 

Mr. Katzenbach. I would really rather say no on that. 

Mr. Waldie. If you say no on him, you would have to pretty well 
say no on the other? 

Mr. Katzenbach. No; I think that there is a public interest in the 
appointment of police that really does not go to the area of private 
employment. 

Mr. Waldie. I have no further questions. 

Mr. Edwards. Mr. McClory? 

Mr. McClory. Mr. Katzenbach, based upon your experience as 
Attorney General do 3'ou feel that the type of information that we 
are talking about here in the arrest records and related information 
was really not essential, not really necessary, not helpful, in connection 
with the prosecution of offenses? 

Mr. Katzenbach. I cannot honestly say that this was always the 
case. Again, I go to the organized crime area. It was important to 
know, largely for identification. 

Mr. McClory. How do your feel about the provisions in the re- 
lated legislation or in other pending legislation in the Congress that 
the decision would be largely in the discretion of the Attorney General? 
Do you think that this is a valid authority to vest in the Attorney 
General? 

Mr. Katzenbach. I do, but I would have to repeat what I said 
earlier, Congressman. The law enforcement people would not like it 
a darn bit. I don't think that this makes them right, but they would 
not like it. 



13 

You would get a good deal of opposition to vesting that authority 
in the Attorney General and the Bureau. This is in part why I have 
suggested to the committee that not only, who it was disseminated 
to, but a record of what the reason for having that information was, 
this might be important to keep, and it might teach us a little bit 
more over time, as to why people thought that they needed that 
information. 

Mr. McClory. I am going into the specifics. I interpret this pend- 
ing measure as going beyond that which you would prefer, that is, 
that there would be no latitude in the Attorney General or prose- 
cuting official with regard to those types of arrest records, for in- 
stance, the arrest for an offense involving use of a gun. 

Mr. Katzenbach. I think that it does probably go a little further, 
I am sympathetic with trying to go that far. I would think that you 
have made a major accomplishment, even if you had to put some 
water into it, even if it did not go quite as far as this bill, it would tend 
to start people to think in the right direction about arrest records. 

Mr. McClory. Do you really feel, do you genuinely feel that 
making arrest records available for a limited purpose to prosecuting 
attorney thi-ough the Attorney General could be successfully carried 
out without the press also gaining the information? 

Mr. Katzenbach. Not always. The press is very good at accj[uir- 
ing information, but I would think that you could realh^ prohibit 
the publication of that kind of information. 

Mr. McClory. And subject them to penalties? 

Mr. Katzexbach. It would be a little bit unpopular to do so, but 
I think that vou could. 

Mr. McClory. We would not hold them to legislative requirements 
that they reveal the source of information? 

Mr. Katzenbach. No, and you would not have the vote of the 
press for the penalty, in any event. 

Mr. McClory. Did I understand that you place photographs in 
the same category with fingerprints and other arrest records, or in a 
different category? In my opinion, they are really the most repre- 
hensible of all. When you have a photograph of a fellow who has 
been arrested and exonerated, and it has the number of his con\dction 
and his identification on the picture, it is really vicious. 

Mr. Katzenbach. I agree with you. 

Mr. McClory. It would be in the same category at least, wouldn't 
it? 

Mr. Katzenbach. Yes. 

Mr. McClory. You mentioned the subject of ethos, and there is one 
part of this measure, and it was also involved in the Spock case, which 
concerns me. That is, that a person is authorized to deny that he 
was arrested, if the 2-year period has gone by or if the record has been 
expunged, in response to a question as to whether or not he was 
arrested. 

Does it pose any problem of ethical or moral behavior of the 
individual to authorize him to make a false statement? 

Mr. Katzenbach. It is bothersome, yes. The question really in my 
judgment should not be asked, whether that justifies 3'ou in denying 
it, I would rather not say. You could refuse to answer that question, 
but it should not be used as a reason for refusing employment. 

Mr. McClory. If he refuses to answer, the refusal to answer should 
not be interpreted to imply any guilt. 



14 

Mr. Katzenbach. Yes. 

Mr. Edwards. Gentlemen, at that point I want to make clear that 
section 3106 does not exactly state what you say it does. It says 
that if an individual is asked a question relating to arrests, he can 
consider the question to apply to an arrest that may be lawfully 
disseminated. 

In other words, we are telling him that he has to comply with the 
request in the case of lawfully disseminated records. 

Mr. McClory. Maybe the language in the Spock case 

Mr. Katzenbach. That is the difficulty when jon are asked, 
"Have you ever been arrested for a narcotics charge, or whatever," 
and he has never been arrested on a narcotics charge that could 
lawfully be disseminated. However, if he has been arrested on a 
narcotics charge, he has a dilemma. 

Mr. McClory. Mr. Chairman, I notice that it is 30 seconds before 
the hour and the witness has to be excused before 10 o'clock, so I 
conclude my questions at this point. Thank you very, very much, 
Mr. Katzenbach. 

Mr. Edwards. Mr. Katzenbach, we are very grateful for j^our 
testimony today on the subject. We might in the future get in touch 
with you again, because we do not underestimate the complications 
involved. 

Mr. Katzenbach. I would be delighted to be of any help I can to 
the committee, Mr. Chairman. It is a complicated subject. I would 
like to repeat what I said at the outset. Trying to grapple with this 
kind of a subject, trjdng to determine what kind of information 
should be disseminated to whom, and for what purpose. This is an 
increasingl}'^ important thing in our society, and as difficult as it is, 
I think that it is important to try to grab hold of that, and to do it 
even if in the course of doing it, jou have to balance some legitimate 
law enforcement need against some legitimate rights of privacy. 

Mr. Edwards. Thank you very much. 

Our second witness is Prof. Herbert S. Aliller, who has an 
outstanding background in criminal law. He is a graduate of the 
Georgetown Universitv Law Center. 

From 1958 to 1961, he served as counsel to the Oregon State 
Legislature. From 1961 to 1965, he was a prosecutor with the criminal 
division of the Department of Justice. 

Since that time, Professor Miller has served as a reporter to the 
American Bar Association project on standards for criminal justice; 
adviser to the Joint Commission on Correctional Manpower; adviser 
on Narcotics and Drug Abuse, the President's Crime Commission; 
chairman of the Fairfax County Citizen's Committee on Crime and 
Delinquency, and vice chairman of the Criminal Justice Advisory 
Board of Fairfax County. 

Currently, Professor Miller is chairman of the Offender Aid and 
Restoration Board of Fairfax County, a member of the National 
Governing Board of Common Cause, chairman of the American Bar 
Association Committee on Corrections and Rehabilitation, and deputy 
director of the Institute of Criminal Law and Procedure at the 
Georgetown University Law Center. 

He has just completed what is reputed to be a landmark study for 
the Department of Labor entitled, "The Closed Door: The Effects 



15 

of a Criminal Record on Employment with State and Local Public 
Agencies." 

(The material referred to appears at p. 259.) 

Professor Miller, the committee welcomes you and you may proceed. 

TESTIMONY OF PEOF. HERBEET S. MILLEE, DEPUTY DIEECTOE, 
GEOEGETOWN UNIVEESITY LAW CENTEE, INSTITUTE OF CEIM- 
INAL LAW AND PEOCEDUEE 

Professor Miller. Thank you, Mr. Chairman. I will formally 
submit a copy of the report to the committee. Chapters 1, 6, 7, and 8 
deal specifically with arrest records. 

In addition to the statistics cited by Mr. Katzenbach of how many 
males can look forward to being arrested in the future, we found that 
most States and local governments do ask for arrest records. 

For instance, 77 percent of all the cities in the United States who 
sent us their job application forms asked for the arrest record short of 
conviction. 

We also found that approximately 20 percent of all the jurisdictions 
that responded regard arrest records as grounds for not hiring ap- 
plicants. Over 50 percent of the jurisdictions simply specified some 
vague and undetermined grounds, many of which included mere 
arrest records. So the study concludes that the question of arrest 
records in terms of jobs is not academic; it is very real, and poses a 
problem to the person who has one. 

H.R. 13315 is a landmark effort to control the use and abuse of 
these records, Mr. Chairman. 

The first specific I would like to address myself to in the bill is the 
concept of the federally assisted law enforcement agenc}'. It is my 
belief that the Congress has the power to intervene in the area of 
arrest records, and that this power includes the right to control all 
dissemination. I don't believe j^ou need the definition of "federally 
assisted"; that any law enforcement agency can be subject to this bill. 

Mr. Edwards. With what congressional power? 

Professor Miller. I believe that there is a whole range of legal 
theories which give Congress that power starting with the civil rights 
bill, title 7 as interpreted by the courts. The due process clause, the 
right to privacy which has been interpreted by courts, the liberty and 
property concepts of the fifth amendment, and the equal protection 
clause provide additional power for Congress to enter this field. 

Our study cites the cases, and how we think that it applies to this 
congressional power. If you wish to continue with the concept of 
federal!}^ assisted, I would hope that you would expand it to, include 
maiiA' forms of aid given to the law enforcement agencies including 
Labor, HEW, and model cities. 

Second, I want to discuss the term law enforcement agency as it 
relates to access of arrest records. It includes all agencies with any con- 
nection with the criminal system, and I see no agencies which would 
be excluded. 

I wanted to question the need for courts, juvenile or correctional 
agencies to have any but very limited access to these arrest records. 
The Supreme Court of the United States, of course, has held that there 
is no probative value to an arrest record, and I don't think that an 
arrest record is admissible in a court of law, during any litigation. 



16 

Of course, it has no probative value, and as far as using the record, 
the American Bar Association lias already adoi)ted a standard that 
would preclude the use of an arrest record not followed by a conviction 
in presentence reports. 

The bar recommended that prior criminal record "include only those 
charges which have resulted in a conviction. Arrests, juvenile disposi- 
tions short of an adjudication, and the like, can be extremely mislead- 
ing and damaging if presented to the court as part of a section of the 
report which deals with past convictions." 

What I have tried to delineate is how can you somehow more speci- 
ficall}" limit the dissemination of the record? The standard the bill 
adoj^ts, compelling public interest is strong, but a ver}^ vague standard. 

I would suggest that we use the word "law enforcement purposes 
onl}^," as a wa}' of being very specific as to when dissemination can 
take place. I suggest as a definition, that this include investigation of 
crime, applications for positions with law enforcement agencies, and 
a])i)lications for positions directly and immediately concerned with 
national security. 

For these purposes, and these purposes only, should those records 
be disseminated. This conceivabh', Mr. Chairman, could go bej^ond 
what 3'ou construe as comj)elling public interest. But, I am leary of 
vague standards and how they are going to be applied b}' the courts, 
how thej are going to be applied by administrators, as the kind of 
litigation that may result. This should be avoided if possible. 

Section 3102 prohibits dissemination after 2 j^ears. I wonder about 
this 2-3^ear period. What I suggest is that the arrest record shoukl 
have no legal standing for purposes of dissemination, except for law 
enforcement ])urposes, and without reference to an}- 2-year period. 

I sup])ose, implicitly what I am saying is that I have mixed feelings 
about the destruction of criminal records. I have mixed feelings about 
destroying records — which in effect is rewriting history. 

In my travels around the country I have found sharp reaction among 
judges, lawyers, and law enforcement officials when you suggest that 
a record in any way be obliterated. 

I have been influenced by these reactions, so I am suggesting that 
there be nothing which imi)lies a literal destruction, but that the dis- 
semination be specifically limited. 

I wanted to address my attention to the prior conviction of a felony, 
which I believe in the bill would leave it open for dissemination regard- 
less of any other factors. There should be no relationship between a 
prior conviction and an arrest record. 

There is clear evidence that anybod}^ with a felom^ conviction record 
may be subject to more arrests than other citizens. Police frequently 
keep tabs on persons with conviction records. Some jurisdictions re- 
quire registration of people who have a conviction record, and auto- 
matically they are going to be subject to a larger number of arrests 
than other individuals. 

If we take the attitude that the arrest record itself has minimal 
validity, then the arrest record on the part of a person who has a 
jirior conviction, because he is subject to suspicion, and surveillance, 
has almost no validity. 

Therefore I recommend eliminating the prior conviction provision 
in the proposed legislation. 



17 

I can only agree with Mr. Katzenbach that the sections which pro- 
vide for inspection of the records to determine accurac}' and to correct 
it, if necessary, are absoUitely essential to this bill. 

I would add one possible minor amendment and that is, where a 
person can find out whether his record has been transmitted to any 
other person or agenc}', and would authorize court proceedings, you 
might want to consider language which would provide an opportimity 
for administrative re\'iew. 

If then, within a relatively short period of time, one does not get a 
satisfactory response from the law enforcement agency, court proceed- 
ings would be authorized. 

I emphasize one thing in m^^ stud^y, and that is jobs. The one finding 
throughout the study is that an}' kind of a record, arrest, juvenile or 
conviction, is a substantial obstacle to employment. I think that the 
thing that shocked us the most is that the arrest record is almost as 
much of an obstacle as the conviction record. The juvenile record is 
also an obstacle. 

In one jurisdiction we had persons go to the police station, and without 
identifying themselves, get criminal records of individuals. 

Mr. Edwards. How do these employers get access to these arrest 
records? 

Professor Miller. Well, most States have laws which state that 
juvenile arrests are not criminal offenses and that they are to be kept 
confidential at the discretion of the court. In one jurisdiction the court 
had delegated to the juvenile probation authority the decisionmaking 
power. In that jurisdiction, anybod}^ could look at juvenile records. 
That was their policy. 

Yet, in another jurisdiction, the juvenile probation department would 
not let anybody look at the records. They insisted that ever3-body go to 
the court, and the}^ recommended to the court that nobod}" get a look 
at the juvenile records. 

So, you have wideW varying approaches under essentially the 
same law, and unless you go into ever}^ local juvenile court, there is 
no way of knowing how this worked. We know enough to make us 
believe that in a substantial number of jurisdictions the juvenile records 
and the arrest records are easily available. 

Mr. Edwards. Do you think that today in the United States, 
prospective emplo^^ers are getting access to FBI or State police arrest 
records on applicants for jobs? 

Professor Miller. We believe that this is probably a case in many 
areas. The technique is for the local police department to ask for a 
record check and pass the record on. 

As I said, j^ou could not document it unless 3-011 went into eveiy 
jurisdiction. Manj' application forms do ask for the arrest records and 
the average person does not know whether he has to report juvenile 
arrests. The}- don't know how to make legal distinctions. Juvenile 
arrests are not criminal, 3-et if one was arrested as a juvenile he \\ill 
probably answer it "Yes." 

This is what realh* brings me to what I think is the key issue, or one 
of the key issues that Mr. Katzenbach alluded to. That is, even if an 
individual knows that his records will not be disseminated, can he lie 
if he is asked the arrest records question? 

I don't think that he can lie; I don't think that he should even be 
put to that test. I believe that Congr(}ss has the authority to say to 
any emploj^er in the United States, pubHc or private, 3'ou cannot ask 



18 

about arrest records which are not followed by convictions. No job 
applications, no license applications, no bonding application forms, 
and no forms for obtaining civil rights privileges should include an 
arrest question. 

Mr. McClory. Can I inquire on that point. Shouldn't we subject 
the person to a penalty who would include such a question, either 
verbally or in a ^^Titten form? 

Professor Miller. I agree A\ith j'ou, Mr. McClory, there are several 
cases on this subject, both under title 7 of the Civil Eights Act, and 
both involving emploj^^ment. The first case, Gregory v. Litton, 316 F. 
Supp. (1970), involved a black job apphcant with a long arrest record. 
The job application form asked about the record. The Court said this 
was per se is discriminatory because 28 percent of the arrests were 
black in 1969 even though blacks represent onh^ 11 percent of the 
population. 

In a later case Chief Justice Berger looked at a requirement for a 
high school education for a menial job with a power company. Griggs 
V. Duke Power, 401 U.S. 424 (1971). _ 

This is what the Supreme Court said : 

The objective of Congress was to achieve equaUty of employment opportunities 
and remove barriers that have operated in the past to favor an identifiable group 
of white employees over other employees. 

Under the Act, practices, procedures, or tests neutral on their face, and even 
neutral in terms of intent, cannot be maintained if the.y operate to freeze the 
status quo of prior discriminatory employment practices. 

What is required by Congress is the removal of artificial, arbitrary and un- 
necessary barriers to employment when the barriers operate invidioush' to 
discriminate on the basis of racial or impermissible classification. 

Mr. McClory. Mr. Chairman, may I ask one more question? 

Do the applications for the civil ser\ace contain a question with 
regard to prior arrests? 

Professor Miller. The Federal Government application form 
specifically excludes arrest records. To continue the quote : 

The act proscribes not only overt discrimination, but also practices that are 
fair in form, but discriminatory in operation. The touchstone is business necessity. 
If an employment practice which operates to exclude Negroes cannot be shown 
to be related to job performance, the practice is prohibited. 

Congress has placed on the employer the burden of showing that any given 
requirement must have a manifest relationship to the employment in question. 

Far from disparaging job qualifications as such. Congress has made such qualifi- 
cations the controlling factor, so that race, religion, nationality and sex become 
irrelevant. What Congress has commanded is that any tests used must measure 
the person for the job and not the person in the abstract. 

I think that this language would almost preclude the asking of the 
arrest records question, perhaps except for law enforcement purposes. 
I think that this basically concludes my testimony. There are other 
minor suggestions in my prepared statement, Mr. Chairman. 

Mr. Edwards. I think that all of these matters will come out in the 
dialog, Professor Miller. We do thank you for an excellent statement 
which goes beyond the impurities, shall we say, of the bill to the 
intended policy. 

I think that we can interpret Mr. Katzenbach's statement to be 
generally in favor of the bill, but he seemed to express one doubt with 
regard to key element of the bill. That was, he said, probably that 
where organized crime or some other severe situations were concerned, 
the arrest records really ought to be disseminated. Did you get that 
interpretation from him? 



19 

Professor Miller. I got that interpretation, and we know that the 
special task forces have been in operation for a number of j-ears to 
survey alleged organized criminals. From i)ublic reports it appears that 
there is a practice of harassing to an extreme degree the individuals 
under surveillance. They are arrested for many minor things. I don't 
think that there has been any denial of such harassment. 

I would be disturbed b}" an exception on the organized crime area, 
knowing some of the practices that law-enforcement officials are now 
involved in, where people are being arrested without any real cause, 
because either the law-enforcement officials believe, or there is some 
evidence that they are engaged in criminal activit^^ I believe that 
opening such doors can lead to some severe abuses. 

Arrest records simply" should have much more legal status across 
the board, Mr. Chairman, if the presumption, in essence, which the 
Supreme Court has mentioned many times, could touch on the criminal 
justice system, it is a very good s^^stem, it is the adversary system of 
our whole constitutional panoply of due process requirement. 

If you start making broad differentiation for different types of 
activities, you sa}^, can't be used here, can't be used there. 

Mr. Edwards. In the bill, we thought that we were taking care of 
that i^roblem by stating that the attorne^^ general or local law-enforce- 
ment officials mSLY upon sho^^"ing the compelling public interest obtain 
from a court an order lifting the prohibition proposed by the bill. 

You don't have any objection to that particular provision of the 
bill? 

Professor Miller. No; I think that it is fairly cumbersome, but 

1 am inclined to think that it should be reasonabh^ cumbersome, that 
the government should be forced to make a strong showing, abso- 
lutely. 

Mr. Edwards. Do you oppose a general exception such as perhaps 
such as Mr. Katzenbach had in mind? 

Professor Miller. Yes, sh. I would be inclined that way. 

Mr. Edwards. You also disagree with the 2-year time frame word- 
ing included in section 3102, and suggest that the 2-year period be 
deleted. 

Now, what about an arrest record for a felonj^ if that has been 
sent, let us say, to the FBI, and the prosecutor is still undecided as 
to whether or not he is going to prosecute. The investigators are still 
working on the case, the prosecutor has a large backlog, the man is 
out on bail. 

What about the dissemination of that particular arrest record which 
might very well mature into a conviction for a felony? 

Professor Miller. I would have no objection, as long as there is 
prosecution pending, Mr. Chairman. It could conceivably go beyond 

2 years. It is the flat 2 years requirement to which I object, not the 
pending prosecution. 

Mr. Edwards. Are 3^ou going to require that the FBI or any other 
record-keeping organization keep the files up to date with regard to 
prosecution, if an}^ pending in the area where the crime allegedly 
took place? 

Professor Miller. I don't know the teclinical capability of our 
information S3^stems. I know that in the District of Columbia they 
have instituted a docket control SA^stem using the latest techniques of 
information storing and retrieval. I gathered from what ]\Ir. Katzen- 



20 

bach said there are not many hmitations on how you can store and 
control the records. 

1 am assuming that this can be done, as far as the proper technical 
aspects are involved. 

Mr. Edwards. Now, at least before dissemination, the dissemina- 
tion could be delayed until a communication was received from the 
prosecutor as to the disposition of the case? 

Professor Miller. Yes. Let me say, Mr. Chairman, that the 
Virginia Legislature recenth^ had over 300 bills introduced. There is 
a simple computer system where anybody coming off the streets can 
go in there and ask the operator what is the status of H.R. 1, 10 or 
20. They can get that in about 10 seconds. 

I don't think that this technically would be a tremendous problem. 

Mr. McClory. I am going to leave, I don't have any questions. I 
was only going to ask if the study that you have just completed was 
going to be published and distributed to members of the Congress, 
do you know? Is there just a limited number of copies? 

Professor Miller. There is a limited number of copies printed, but 
I hope there will be a large number of copies printed in the next few 
months. I am leaving one copy here with the committee. 

Mr. McClory. Thank you. 

Mr. Edwards. Do you think that the bill should be broad enough 
to include federally assisted law enforcem,ent agencies? What per- 
centage would not be covered if the bill were enacted as written? 

Professor Miller. Probablj' a verj^, very small percentage. As a 
practical matter, Mr. Chairman, at this time, it is not a major point, 
but I do think that legally Congress can delete that requirement. 

Mr. Edwards. Mr. Wiggins? 

Mr. Wiggins. Professor Miller, what is your reaction to what 
I i)ut to Mr. Katzenbach as to the control of those records for 
dissemination? 

Professor Miller. One of the reasons we originally opted for the 
Federal legislation is that State legislation did not have any impact, 
since as a practical matter most arrest records, except for the most 
minor offenses, are centralized in the FBI. 

The Crime Commission estimated the}^ had 58 million arrest 
records in the FBI, that they have 1,000 clerks processing over 30,000 
coming in every day. From my point of view, it is already centralized, 
if you are suggesting that it then not be made available at the local 
level. 

Mr. Wiggins. I am not suggesting it, I am really asking questions. 
If they are centralized, and if there is a technically feasible way of 
retrieving that information quickly, then there is no need to duplicate 
at the local level. Of course, if that is avoided the problem of in- 
discriminate dissemination becomes more easily controlled. 

Professor Miller. Arrest records almost always originate at the 
local level. In most cases, it is not a Federal arrest, and the FBI at 
this time only takes a certain number of arrest records. 

I believe that if the local police do not fingerprint it is not sent on 
to the FBI. So, the local people are going to have a large number of 
records anj^wav, I don't think that it is any burden or any duplication 
if they keep tlieir own arrest records. There is no added burden on 
them. The record originates there. 

Mr. Wiggins. Maybe I am not making my point clear. I am asking 
a question; I don't wish necessarily to be embracing what I may 



21 

appear to suggest. I gather that there is a problem of easy accessi- 
bility of arrest records particularly at those levels. 

A merchant calls a police officer, or a prospective employer calls 
his friend, the chief of i)olice, and says, "What do you have on John 
Doe," and perhaps he gets that information, to the detriment of the 
individual. My question really relates to the necessity of that Chief's 
maintaining those records at all, if there is an adequate central means 
of maintaining that information, and if there is an information retrieval 
system suitable for getting the information back on a controlled 
basis for proper purposes for that law enforcement agency. 

Professor Miller. I believe, Mr. Wiggins, that there is a legitimate 
law enforcement purpose. I would hesitate to prohibit them from 
keeping theu' own records for that purpose. Without ha\'ing delved 
into the ])roblem, I would wonder whether or not there would be some 
constitutional problem in telling a local law enforcement agency 
that a record which originated there would not be maintained. 

I think that would have to be looked into, given the Federal system 
and the res})onsibility placed on the State and local law enforcement 
agencies in the United States. Perhaps a legitimate argument should, 
be made for legitimate law enforcement agencies to keep those records 
locally. 

Mr. Wiggins. Let us go on to a different subject. We are here 
talking about arrest records, but that is only one bit of information 
which might damage a i)erson. Why have we elevated this to such 
great sanctity and not be concerned about an emploj^er asking a 
prospective employee about noncriminal conduct that also may be 
very damaging? Do you drink? for example, have you ever been 
divorced? have you ever filed a petition for bankruptcy? how do you 
get along with your wife? what clubs do you belong to? things of that 
nature. This, like that, could also be damaging. Why do we not show 
an equal amount of concern about these? 

Professor Miller. I can only agree with you. 

Mr. Wiggins. You don't have to agree, I am not claiming that 
they should not be asked, I am just wondering about it? 

Professor Miller. I think under the holding of the Supreme Court 
which I just read, the Court is really posting a theory which says 
there has to be some relationship between the requirement and the 
job, a manifest relationship. 

I think that there should be a standard of relationship whether it 
be a criminal record or a moral character inquiry or whether it be 
any other inquiry that you have named. That is a standard of relation- 
ship, I think that this could be imposed on the employer. 

Mr. Wiggins. Basically the employer wants to know what kind of a 
guy he has in front of him, if he is going to be a good employee. In 
a sense, it is his job. Prior involvement in criminal matters would be 
of great interest to an employer and what you are really saying is 
that it should not be, even though it is. 

Professor Miller. Unless there is a relationship between the inquiry 
and the job. 

Mr. Wiggins. Well, let us explore this a little bit. There is a whole 
category of crimes which can be described generally as victimless 
crimes in which con\dctions are rare, but many arrests are made. 

The problem is, it is impractical to prosecute when you do not 
have the cooperation of the -victim of the crime. All of the gambling 



22 

cases, most of the narcotics cases, fines in certain jurisdictions involv- 
ing homosexuality, sexual conduct — ^I can conceive of some jobs where 
a concern about those items might be germane to employment. 

Let us take a school teacher for example; in the elementary grades. 
It could almost be a dereliction of the part of the school administrator 
to be indifferent to the fact that he may be dealing with a homosexual. 

That is my observation, I don't agree with it, but I think that it 
ought to be considered, as a practical matter. 

Professor Miller. You are really addressing a much deeper problem, 
Mr. Wiggins, as to whether or not some of these matters should be 
in the criminal system at all. 

You have elevated the whole question as to whether or not they 
should be applied to a different range of personal characteristics which 
might be valid for schoolteachers or some other jobs, where you are 
dealing with people in a certain way, regardless of whether it is a 
crime or not. 

Mr. Wiggins. It might be treated as drinking, which is noncriminal 
conduct but refers to character? 

Professor Miller. When we know that there are 20 million arrests 
made for public drunkeness going through the system, public drunk- 
eness clogging up the jail and the courts, and the police spending a lot 
of time on something mth which they should not be that concerned. 

I think that to some extent we are talking about decriminalizing 
much of the activity that we now supervise. 

Mr. Wiggins. If records are sometimes valid for police investigatory 
purposes as you have indicated, and perhaps sometimes may be 
valid for the exceptions that j^ou recommend, like national security 
cases, can we ever safely destroy records? 

Professor Miller. Well, as I have indicated, I have mixed feelings 
about the destruction of records, although I might add that one of our 
recommendations as to juvenile records is that after a certain time 
they be obliterated. But we have treated them quite separatel}'^ from 
adult records for a ■s\'ide variety of reasons. 

As to arrest records, I think that the recommendations that I made 
as to their law enforcement purpose use would be inconsistent with 
the destruction of the records. 

Mr. Wiggins. Would it be reasonable to draw a line between those 
arrests which result in an indictment or a complaint being filed or 
whatever the procedure may be in a given jurisdiction — the matters 
being brought before a court, whatever its disposition — and those 
cases which do not get that far, for purposes of destruction? 

Professor Miller. For either use or dissemination? 

Mr. Wiggins. Yes, I think so, I think that I would add that. 

Professor Miller. My problem with using that is the standard 
criteria. I am an ex-prosecutor and mj^ problem is that you are really 
relying too much on the intelligent use of discretion by prosecutors 
all over the United States. 

Most of them are elected officers in the State, and many are com- 
pletely inexperienced people when they take office, and do not have 
a broad perspective of the criminal justice system. 

I must say that most law^^ers don't have that either, but they are 
representatives of their profession. I would hesitate to use that 
standard, I know from personal experience, and I know from my 
experiences Avith prosecutors in many parts of the country of the 



23 

techniques used to try to get pleas of quilty on lesser charges, the over- 
charging, the multicharging. 

This is done as a matter of routine in many jurisdictions. I just 
don't think that this standard is valid. 

Mr. Wiggins. I am also aware of these practices, from some personal 
experience, but the thing that may be somewhat desirable is to 
provide an opportunity for an official explanation of the disposition of 
the case. 

Now, if the charge is filed and dismissed in order to accept a plea 
on a lesser charge, that is all before the court in a certain way, and a 
record of the reason for dismissal is available or can be made available 
by recordkeeping. Like^\ise, if the man was found not guilty, because 
of the inadmissibilit}'' of evidence which really did not go to the 
probability of his guilt, that can be made available by appropriate 
notation in some sort of a court record, which would give an oppor- 
tunity for some sort of an intelligent evaluation of the arrest. In 
contrast, the district attorney and the country prosecutor, or whoever, 
may simply look at the arrest reports in the police office and say, 
"We simply don't have a case here," and notliing is filed. 

Presently there really is not a record upon which any evaluation 
of those acts can be made by some person do^^-n the road. 

Professor Miller. The typical prosecutor is moving so fast and 
has such a burden that he has to screen out many cases for a ^^^.de 
variety of reasons, frequently not concerned whether there is e\ddence. 
But they are valid reasons. 

I notice in Virginia, for instance, that crime incidence has sky- 
rocketed in the last 10 years as it has all over the United States, 
and yet the number of felony convictions has remained static or 
actually come do^^^l. 

We don't know how or where these cases are getting screened out, 
because the system is an abomination as it is everywhere in the United 
States. Operating under the enormous pressures that the prosecutor 
operates, the records are made so fast, that you may be asking for 
a lot of rational estimation. 

I don't know when they are going to be able to sit do^^^l and act 
in a rational way. I think that you are putting a burden on the 
prosecutor and a burden on the court. The thing that I keep going 
back to, is that arrest records should not have legal status if the 
presumption of innocence really means anything. To start dramng lines 
and standards throughout the system, I think simply ignores some 
fundamental aspects of our system. 

Mr. Wiggins. But to harp on that fundamental aspect is also to 
ignore the very real fact that many men arrested, although not proven 
guilty because their case is not brought to trial for multiple reasons, 
may be guilty of the most reprehensible conduct and this may bear 
upon their future right to emploj'ment or whatever. That is a fact, 
we all know that to be a fact, and we should not be oblivious to that 
simply because for all purposes we presume everyone to be in an 
"innocent" status. 

In any event, one final question deafing with some aspects of the 
bill itself. Do you have a copy of it in front of you? 

I have many problems about the language and certaui things that 
are fairly technical in nature, »but they can be resolved. 



24 

Section 3104, on page 5 of the bill, provides that an individual may, 
if he has a reason to believe that a criminal arrest record is being 
disseminated improperly in violation of the act, petition for an order 
enjoining such dissemination. 

I am a little bit curious about the nature of that action. That surely 
is not intended to ])ermit the court to issue an ex-parte order, would 
you think? Certainly, notice shoidd be given to the law enforcement 
agency and an opi)ortunity to be heard. 

Professor Miller. I would think that this is assumed by the 
statute and in the normal procedures which are in existence under 
Federal rule. I would assume that this would be required withoat 
specifying in the statute. 

Mr. Wiggins. All right, but I think that it is important to have 
something to that effect in the record, because the statute does 
assume some things which I think we should define specifically. 

It would be your thought that this provision would result probably 
in a requirement that notice be giv^en to certain parties so that a show 
cause hearing could be held on the issue of whether or not the record 
should be corrected and an injunction issued. Is that your thought? 

Professor Miller. I would say yes; but I would also add that there 
is a criminal penalty provision in here, and I suppose that one of the 
purposes in having it there is to determine if there was a violation of 
the law. That would be very useful, if a person made that allegation. 

It would frankly be a useful tool by which private citizens with no 
investigatory apparatus could find out through the courts as to whether 
or not the law had been violated. It would be extremely useful. 

I might add, Mr. Chairman, that one of the things that we discussed 
in my office, and I discussed it with a number of people, was the nature 
of the penalty. There were circumstances where we felt that a tami:)er- 
ing of the record to the possible permanent damage to an indi\'idual 
should be treated more severely than a misdemeanor. 

Mr. Edwards. Who would be the official in the Department of 
Justice who would be subject to the criminal sanction that you spoke 
of? 

Professor Miller. I don't know. 

Mr. Sarbanes. I was interested in the figures that indicate that a 
majority of white, urban males will, in the futiu^e, have arrest records, 
and that this will be true for three out of every four black urban 
males. 

Professor Miller. Yes, the President's Crime Commission made 
an effort, based on the number of factors, to predict what kind of 
arrest records frequency we would have, and these figures are inter- 
polated from the report. 

I think Mr. Katzenbach said, nine out of 10 black males may be 
subject to arrest. We know now, that perhaps more than a quarter 
of the po])ulation of the United States has criminal arrest records. 

The FBI has 30 million fingerprints in their files, or close to it, 
this is a quarter of the population of the United States. 

Mr. Wiggins. Is the public interest being served by limitation on 
the dissemination of the information which is contained on a set of 
fingerprints to very specific cases? What bothers me is that that is 
a valuable piece of information for identification purposes. 



25 

It does not necessarily imply criminal conduct to get fingerprinted. 
One gets fingerprinted for a lot of reasons. This suggestion that the 
fingerprints should be treated as the criminal arrest record is some- 
what oft'ensive to me. 

Professor Miller. Well, I guess I have been fingerprinted at least 
six to a dozen times in my lifetime for noncriminal jjurposes, so I 
agree with you. The estimate as to how many people in the United 
States have arrest records goes as high as 50 million people. 

Mr. Wiggins. Does the bill include fingerprints and mean that 
fingerprints could not be made available except to law enforcement 
agencies, and could only be disseminated by them to other law 
enforcement agencies? It seems to me that they woidd be a valuable 
tool for many purposes unrelated to law enforcement. 

In other v.ords, it restricts to law enforcement purposes. Should it? 

Professor Miller. Well, the fingerprint itself is one thing and the 
arrest record is another. If you can separate the fingerprint for some 
legitimate noncriminal purpose that is unrelated to the arrest records. 

Mr. WiGGixs. That is defined to include, on page 8, "The term 
'criminal arrest record' means records and related data, including 
fingerprint." 

Professor Miller. I don't know that it excludes arrest records 
that do not have fingerprints. 

Mr. Wiggins. You would not object to some isolated use of finger- 
prints as distinguished from the more usual arrest records? 

Professor Miller. They are frequently very valuable for legiti- 
mate identification purposes, not having anything to do with crime. 

Mr. Zeifman. There is a provision in the bill that provides for court 
procedure to allow certain dissemination and use ui)on a showing of 
compelling public interest. Can 3*ou give a hypothetical situation where 
there would be a compelling interest, and perhaps one where there 
would be no compelling public interest? 

Professor Miller. An intelligence agency that requires a very 
high securit}^ clearance, I don't think that you would have too nnich 
problem getting a court to agree that there is a compelhng pubhc 
interest there. I think that there is a compelling interest there and a 
legitimate inquiry there, but it is one extreme where you can see that 
there is a compelling public interest. 

Mr. Zeifman. I am interested in a compelling pubhc interest that 
comes not from the application to an intelligence agency. Suppose 
that a person had a record of being arrested five times in five different 
cities for molesting a child. 

In each case there was no conviction, and assume — let us limit it 
to two cases — that the reason why there was no conviction was that 
shortly before the trial, in both cases, the key wdtness had died of a 
heart attack or for some other reason that was not related to the 
matters. 

Do you think that a case of that sort would be compelling public 
interest for allowing the records to be disseminated to law enforcement 
agencies for their purposes only? 

Professor Miller. Well, of course, for law enforcement purposes 
only, we should permit dissemination without showing the compelling 
public interest. The trouble with the compelling public interest, in 
looking reall}' behind what went on, of course if such a disposition 
took place, it would involve a lot of investigation. 



26 

The Spock case says we cannot expunge the record, but that we 
will permit the people arrested but not convicted to come in to es- 
tablish that they were not culpable through a hearing. If they are 
not culpable the record will reflect tliis. 

This could involve long hearings and the Government could come 
in and contest. The idea of going behind the prosecutor's mind would 
create an enormous amount of litigation. 

I also think that it could create some real problems of how a pros- 
ecutor operates. I think that prosecutors are a very basic part of 
our system. If you have good, intelligent prosecutors, you have a 
system that works well. 

If you have prosecutors that don't use it wisely, you have a bad 
system. But to try to go behind all that and establish why he did it, 
I think that you are creating heavy burdens. 

This is wlw I am counseling against doing this sort of thing. You 
are giving me a very extreme case, which I think would be very, 
very rare, frankly. In balance, I don't think that it is worth it except 
for these extreme cases, to go behind the decision. 

Mr. Zeifman. Do you think that it would be worth it under the 
way the bill is drafted? 

Professor Miller. If the Attorney General or the Bureau wanted 
to open this up. 

Mr. Zeifman. We wanted to go to the courts and give clear, com- 
pelling evidence, it would not simply be at the prosecutor's discretion? 

Professor Miller. It could involve bringing in the prosecutor 
and numerous other people, police officers, witnesses, conceivably to 
try to establish what was the real reason to establish why the charge 
was dismissed. 

Mr. Zeifman. Under the bill it would not be ex parte. 

Professor Miller. Right. 

Mr. Zeifman. You would not object to that, would you? 

Professor Miller. If you are just leaving it up to the Attorney 
General to do it in the rare case. 

Mr. Zeifman. In the bill where it is left up to the court? 

Professor Miller. Yes. 

Mr. Zeifman. The other question I have relates to my under- 
standing of your statement to the effects that you disagree with 
suppression after 2 years. You would also make it clear that the 
dissemination would be hmited to law enforcement agencies. 

If you took the 2-year provision out of this bill, and you had the 
follo^ving kind of a case: A person was arrested in San Diego, Calif., 
the case was not prosecuted, the arrest record went to the FBI, 
and then, let us say, and the person is now in Portland, Maine. He 
wants to get a job. 

If the Portland police get in touch with the FBI, the record will 
be disseminated to the Portland police. At least the 2-year provision 
in this bill would prevent the dissemination entirely after the 2 years. 
Wouldn't you prefer that? 

Professor Miller. I think they should be available for law enforce- 
ment purposes. Wliat is the difference between 1 year, 2 years, 30 
months; you can get into a numbers game. 

For legitimate law enforcement purposes, the police agenc}'^ ma}^ 
want access to that record. If they have a series of crimes being com- 
mitted and they have some information on so-and-so in another area 



27 

who had been arrested and there is a certain MO involved, I don't 
want to say that they can't get that record for that purpose. 

Mr. Edwards. You have to go to court. 

Professor Miller. The recommendation that I have outHned 
woukl not require them to go to court for law enforcement purposes. 

Mr. Edwards. But for law enforcement purposes, let us assume, 
for example, that the arrest which did not lead to conviction was on 
a narcotics charge. Also let us assume that the arrested person was in 
fact a narcotics user and is under surveillance, there is nothing in this 
bill that would prevent, for example, the San Diego police who had 
that intelligence information that this person is a narcotics dealer, 
from transmitting that intelligence data to anv of the law enforcement 
agencies. 

So, what legitimate law enforcement purpose is served by the cer- 
tificate that mereh' says that the police officer believed at one time 
that he had probable cause? 

If you can allow the data to be transmitted, why do you need the 
arrest record? 

Professor Miller. I think that if the bill made that clear, that you 
were not talking about restricting the legitimate exchange among law 
enforcement agencies, perhaps you would do away Anth the need for 
the arrest record as such. The only law enforcement purpose the arrest 
record serves is to benchmark a person as a possible MO. 

If the law enforcement agency has certain kinds of crimes coming in 
their area, and the}' wanted to query the computer or somebody. They 
could get information from the computer, here is a guy who was ar- 
rested a number of times for this kind of crime and 3'ou discover that 
he is in the area. It could be a useful tool for that purpose, in estab- 
lishing that kind of thing. 

This is what I was thinking of. 

Mr. Wiggins. I have a question, it might be directed to counsel, 
and it might be on the record. If you don't mind, I would like to ask 
Jerry a question or two about this court procedure. 

Given the hypothetical case that 3'ou mentioned, about an arrest 
short of a conviction in San Diego on a serious matter, assume that 
this was transmitted to the FBI and, let us say, a call for data came 
in from Portland, Oreg., more than 2 years later, or the FBI was 
otherwise prohibited from disseminating the data to the Portland 
law enforcement agenc}'. 

I want to ask a question about the mechanics of this court pro- 
cedure. Who files the court proceedings, the FBI or the Portland 
department of police? Does the FBI have any interest in tliis matter 
sufficient for it to go into a Federal com't? 

If not the FBI, and it is the Portland police, it assumes that they 
know the answer to then question already — that they have some some 
data. They would have to know that they have a bad guy in front of 
them in order to take sufficient interest in the matter to go into a 
Federal court. 

Mr. Zeifman. The bill says that it could be either the Attorney 
General or any officer of the law enforcement agencies. 

Mr. Wiggins. As a practical matter it would not make any sense 
for the chief of police to ask the FBI to tell them something which the 
FBI did not know — they would be needlessly spending a lot of time 
and eft'ort on this person. 

78-242 — 72 3 



28 

I would expect that they would already know the data, so that they 
would not have to file a proceeding. On the other hand, I can't con- 
ceive that the FBI would be taking an interest in that police matter 
in Portland, Oreg. 

There is a question as to the practicality of going to a U.S. court to 
file a proceeding to turn loose that little bit of intelligence data; the 
whole machinery seems to be lacking in realism, and I would appreciate 
your comments on it. 

Mr. Zeifman. I think that the bill in its present form was intended 
to raise a number of issues of this type. During the course of these 
hearings we hope that the witnesses will address themselves to these 
problems. 

I also think that it is important to know that there is a difference 
between the transmission of the alleged arrest record as such and 
the transmission of the intelligence data. 

Mr. Wiggins. That difference may be defined, but it may not be 
clear in the mind of law enforcement officers. The basic intelligence 
data is the fact that there is a prior arrest, and I think that there would 
be great variance in the understanding of that distinction as practiced 
by people in the business. 

Well, these are all my questions of counsel. 
Mr. Edwards. Mr. Sarbanes? 

Mr. Sarbanes. Professor Miller, do you have any information on, 
I assume, the rise in the percentage of the population in this country 
over a population of people who have an arrest record? 
Professor Miller. I don't have such figures. 

Mr. Sarbanes. Do you assume that — ^do you share the assumption 
that it has risen as the percentage factor if w^e were to go back 30 or 20 
years? Would it be a markedly lower percentage of whatever our 
population was at that time with an arrest record? 

Professor Miller. I realh' don't have the facts. I think there is 
one basic assumption, population increase, but I think there is another. 
We have been moving into a period of tension where you have the 
kind of information and the kind of activities that may result in 
more arrests. 

I think that this is what was said in the projection of heavy arrests 
for males in the future. So, it is both reallv. I don't know that a look 
at the past would indicate a nice two-line graph : Population going up 
and arrests going up. This I don't know. 

Mr. Sarbanes. The other question I had was, how do the foreign 
countries handle this problem? 

Professor Miller. I am sorry, my travels in Europe were not 
directed toward the criminal-justice s^^stem. 

Mr. Sarbanes. Did you study the issue of criminal procedures in 
the military and its effect on employment practices and so forth? 

Professor Miller. Not specifically, no. This study was basically 
geared to looking at State and local governments. Many of the find- 
ings really are much broader as are many of the recommendations. 

We did not look at the military, and we did not attempt to define 
what the military criminal record means in terms of impact. 

Mr. Edwards. It seems to me that I lost you for a moment when I 
asked you about the obligation, we will say, of the reporting agency, 
the FBI, just for example to check what has happened to a case 
before it disseminates it. Do you think that they should check arrests. 



29 

either not disseminate it or make certain that they could only dis- 
seminate it if they con\anced themselves as to what happened. 

In other words, requiring them to determine that an arrest is still 
pending prior to dissemination. 

Professor Miller. On a pending prosecution, my view is that the 
technology is here to give easy access to those cases which are pending. 

Mr. Edwards. It seems to me that you also said that in certain 
cases past records should be disseminated if they contained MO? 

Professor Miller. Law enforcement purpose 

Mr. Edwards. Law enforcement purposes, our bill does not con- 
template that. 

Professor Miller. I know that it doesn't. I will be honest with 
you, even though I think that such records should not be made 
available easily, I rather suspect that you would be putting an enor- 
mous burden on the courts when a ranking official from the Depart- 
ment of Justice says: "We need to get at this information," and I 
just don't know how the courts are going to deny it, frankly. 

If they think that they want to deny it, you are going to ask for 
extremely long hearings, involved proceedings. We know what the 
practice on search warrants, is for the courts routinely to grant search 
warrants when it appears to be a prima facie case. 

I think that they are going to do the same thing, and I don't think 
that you are going to be accomplishing that much, unless the courts 
are willing to take time from a jammed docket. The pressures on 
them are tremendous, to really look into a case. 

Mr. Edwards. I don't see 

Professor Miller. For legitimate law enforcement purposes, I 
would not require the Justice Department to go to court every time 
as long as you define that term specifically. 

Mr. Edwards. Anybody have any other questions? 

Mr. Zeifman. Just one more question in that regard. Suppose at 
the time of the arrest, the judge at the time of the arraignment makes 
a determination that the arrest was illegal, and that an inequity ^would 
follow if the arrest record were permitted. 

The local judge in San Diego, for example, makes a determination 
that the arrest record ought to be expunged and exercises his equity 
powers to order the record expunged. 

Under those circumstances, would you permit the FBI to continue 
to maintain that record wliich pre\'iously had been transmitted to the 
FBI and to disseminate it for law enforcement purposes? 

Professor Miller. I think that you have a position on the expunge- 
ment in the bill, and I completely agree with it. Under equity power 
or statute, I think that expungement should thereafter prohibit the 
dissemination of this record. 

Mr. Edwards. Thank you, Professor Miller, for your very impressive 
testimony. The committee meets on this same project on Wednesday- , 
March 22, when we wih hear from Dr. Robert Gallati, New York 
State identification and intelligence system; and Mr. Charles T. 
Duncan, attorney in Washington, D.C. tjntil then, the hearing stands 
adjourned. 

(Whereupon, at 11:15 a.m., the subcommittee recessed to reconvene 
at 10 a.m., Wednesday, March 22, 1972.) 



DISSEMINATION AND USE OF CRIMINAL ARREST 

RECORDS 



WEDNESDAY, MARCH 22, 1972 

House of Representatives, 

Subcommittee No. 4 of the 
Committee on the Judiciary, 

Washington, D.C. 

The subcommittee met at 10 a.m., pm'suant to notice, in room 2237, 
Raybiim House Office Building, Hon. Don Edwards of California 
(chairman of the subcommittee) presiding. 

Present: Representatives Edwards, Jacobs, Wiggins, Sandman, and 
Keating. 

Also present: Jerome M. Zeifman, counsel; Samuel A. Gariison III, 
associate counsel; and Alfred S. Joseph III, assistant counsel. 

Mr. Edwards. The committee will come to order. 

Subcommittee No. 4 of the House Committee on the Judiciary con- 
tinues today its public hearings on H.R. 13315 to provide for the 
dissemination and use of criminal arrest records in a manner that 
insures their privacy and security. 

Our first witness today is Mr. Charles T. Duncan, an attorney in the 
District of Columbia. Graduating cum laude and Phi Beta Kappa from 
Dartmouth College, Mr. Duncan attended the Harvard University 
Law School and received his LL.D. degree in 1950. 

From 1954 to 1960 he served as lecturer and associate professor at 
the Howard University Law School. From 1961 to 1965 he served as 
principal assistant U.S. attorney in the District of Columbia. During 
1965 to 1966 he served as general counsel to the Equal Employment 
Opportunities Commission and from 1966 to 1970 he served as corpora- 
tion counsel of the District of Columbia. 

During his tenure as corporation counsel, Mr. Duncan served as 
chairman of the Committee To Investigate the Effect of Police Arrest 
Records on Employment Opportunities in the District of Columbia. 

(The report of the committee referred to is at page 189.) 

Mr. Duncan, you may come up and we welcome 3'ou and look for- 
ward to your testimom\ You may proceed. 

TESTIMONY OF CHAELES T. DUNCAN, ATTORNEY, WASHINGTON, D.C. 

Mr. Duncan. Thank you very much, Mr. Chairman. 

I would like to say good morning to you and the other members of 
the committee. I appreciate this opportunity to appear before j^ou this 
morning to testify in support of H.R. 13315, a bill designed to limit 
the maintenance and dissemination of certain criminal arrest records. 

My interest in this subject matter derives from my chairmanship of 
a committee appointed by the former Board of Commissioners of the 

(31) 



32 

District of Columbia in November 1966. The problem before that com- 
mittee was similar to the problems which you gentlemen face today 
and I would like to share with you very briefly the experience of the 
Commissioners' committee. 

In the midfifties and sixties in the District of Columbia it was the 
common practice of employers in service and related industries to re- 
quire prospective male employees to submit a police clearance as part 
of the hiring process. The police clearance was a photocopy of the ap- 
plicant's arrest record as maintained by the Metropolitan Police 
Department. 

The applicant's record, if one existed, was given to the employer 
in its raw form — dispositions were as often as not omitted and the 
typical record contained numerous abbreviations which were compre- 
hensible only to police and other law enforcement officers. 

Our study indicated that between 350 and 400 arrest records per 
day were issued by the police department to individuals seeking em- 
plojanent. At least four full-time employees were required to service 
that caseload. 

The Board of Commissioners received many complaints that the 
dissemination of raw arrest records to employers in the Washington 
area had a definite, if unmeasured, negative impact on employment 
opportunity. 

The problem was particularly aggravated in Washington because in 
earlier 3^ears arrests for investigation were a common police technique 
and many District residents, partif^ularly black males, had records of 
arrest when they in fact had been convicted of no offense, either mis- 
demeanor or felony. In order to help alleviate the unemplo3'ment 
induced crime problem, the Board of Commissioners asked its com- 
mittee to investigate the problem and make recommendations. 

After nearly a year of stud}^, the committee recommended, and the 
Board of Commissioners approved by appropriate orders several 
changes in then existing practices. The police department was directed 
to release arrest records in such form that they reflected only arrests 
which resulted in conviction or forfeiture of collateral. 

The release of any arrest record more than 10 3'ears old was pro- 
hibited, unless the defendant had been incarcerated. A fee for process- 
ing arrest record information was imposed on the prospective employer, 
with criminal sanctions if the emplo^'er sought to shift the expense to 
the prospective employee. 

The applicant's consent to the release of arrest record information 
was required in every case and the use of arrest records relating to 
juveniles was denied entirely to prospective employers as well as to 
city administrative agencies, such as the Department of Motor Vehicles. 

With respect to all of its recommendations, the committee stressed 
that it did not intend to restrict the maintenance, use or dissemina- 
tion of arrest record information for any law enforcement purpose or 
use. 

No followup or evaluative studies have been made on the impact 
of the Commissioners' action in the use of arrest record information 
\\ith respect to prospective emploj'ers, but concerned organizations, 
such as EFEC (Efforts for Ex-Convicts), state that the new 
procedures are much more fair and that the changes of obtaining 
employment among the affected group have been increased sub- 
stantially. 



33 

I am informed that the police department now processes approxi- 
mately 55 to 60 arrest record inquiries per day, as compared with the 
prerestriction figures of 350 to 400 i)er da\'. To my knowledge, there 
have been no substantial or organized complaints from the employer 
communit}^, and the present practice in the District of Columbia 
appears to be operating smoothly for all concerned. 

The members of the committee who made the report, including 
representatives from Government, and the business and labor com- 
munities, were pleased A\"ith their recommendations when made and 
are pleased with the results which they have observed after 5 years of 
experience. 

The bill before this committee, H.R. 13315, if enacted, in my 
opinion, would have similar salutary effects. As I understand the bill, 
it hmits the dissemination of criminal arrest records to and among 
law enforcement agencies. Even ^^ithin that group, records may not 
be disseminated if more than 2 3'ears old, ^^^th certain exceptions, or if 
prosecution is not warranted, or if it has been ordered expunged under 
State law. A provision is also made for inspection and correction of 
arrest records. 

In these days of mass demonstrations, and I refer only to demon- 
strations which are lawful, to my personal knowledge, many young 
people now have arrest records but have been prosecuted for or con- 
victed of no crime. The mere existence of such record, presumably in 
the files of at least two law enforcement agencies, constitutes a perpetual 
threat to such individual. 

Collegiate and post graduate admission is sometimes jeopardized 
and the effects on future employability with respect to these individuals 
can only be surmised. It is grossly unfair, I think, for our Government 
to taint so many of its citizens, to create an aura of vTongdoing when 
in fact such citizens have been convicted of no offense and therefore 
are guilty of no ^\Tongdoing. 

Not only should it be constitutionally required as a matter of due 
process of law, but moreover as a matter of fundamental fairness, 
that the indiscriminate use of arrest record information shauld be 
discontinued. I commend Congressman Edwards and the members of 
this committee for taking the initiative. 

Thank you, Mr. Chairman. 

I ^^•ill try to answer any questions that you or any of your colleagues 
may have. 

Mr. Edwards. Thank you very much, Mr. Duncan, for your most 
useful testimony. In the District of Columbia, the police department 
processes 50 or 60 per day. 

Mr. Duncan. That is what I am informed currently. 

Mr. Edwards. Those are for employers? 

Mr. Duncan. These are strictly with respect to individuals who 
are seeking employment and the emploj^er wants to know whether or 
not the individual has an arrest record. 

Mr. Edwards. What will he get from the District of Columbia, 
whether or not he has a conviction record? 

Mr. Duncan. That is correct, conviction or forfeiture or if there 
is no arrest record at all, the department gives him a statement that 
he has no record of arrest in the District. 

Mr. Edwards. No record of convictions or arrest with forfeiture 
of collateral? 

Mr. Duncan. I suppose it is no record of arrest. 



34 

Mr. Edwards. If he had 25 arrest records, none of which went on 
to conviction or forfeiture of collateral, the report would be negative? 

Mr. Duncan. That is correct. 

Mr. Edwards. Does the District of Columbia operate under a 
law authorizing this practice? 

Mr. Duncan. Congress has pro\aded for the maintenance of two 
kinds of arrest records. One is the so-called precinct book. 

Every time someone is arrested a record of that arrest is written in 
a book at the precinct and the law requires that that be available for 
public inspection at all times when not in use. 

Congress has also required in the District that there be a central 
record maintained of all arrests, without specif3dng whether that 
central record would or would not be available for public inspection. 
The corporation counsel in or about 1955 ruled that the police de- 
partment could make those central records available to credit bureaus, 
private detectives, and the like. It was out of that ruling that the prac- 
tice which I describe arose. Those are the only two laws which reflect 
on the situation. 

Mr. Edwards. Well, the committee's work certainly resulted in a 
substantial improvement in the practices in the District of Columbia. 

]Mr. Duncan. Yes, I think so. The difficulty was, I don't think 
an3^one objected to an emplo^'er having a legitimate interest in the 
criminal involvement of a prospective employee. There are legitimate 
areas of concern there. 

What we were concerned with was the raw form in which the 
records were made available. I could read them as a prosecutor 
ha^^ng used in many, man}^ cases, but a layman couldn't possibly 
understand what this page, or page 2, or page 3 of entries stood for 
and many times people have been arrested three, four, five times and 
never been convicted, and had never even forfeited collateral and 
when the employer saw this awesome looking document from the 
police department showing all those arrests, he would refuse to hire 
the individual, even though he had never been convicted of anything. 

That was the evil we were seeking to correct. 

Mr. Edwards. Under this bill, Air. Duncan, employers would be 
hard put to get even conviction records of felonies. The information 
would be limited to dissemination from one law enforcement agency 
to another. 

Mr. Duncan. I am not entirely sure about this, but, as I read the 
bill, conviction records could be disseminated. 

Mr. Edwards. Let me ask 3'ou this question : If a police department 
in Los Angeles, Calif., asks the District of Columbia Police Department 
for an arrest record, is it sent out with the same restrictions that would 
be provided if the requesting authority were an employer? 

Mr. Duncan. No, sir. The complete raw record would be sent to 
the requesting police department. 

Mr. Edwards. So the Los Angeles Police Department would get a 
record that would not necessarily be valid, tliat is, it could include 
arrests for mistaken identity or anything else? 

Mr. Duncan. That is correct. 

Mr. Edwards. And it could disseminate it to any employer it 
wanted to. 

Mr. Duncan. Under California law presumably they could, yes. 
But one of the things we found and one of the reasons we were willing 
to limit the use of records the way we did, was although in the District 



35 

employers would ask for the local D.C. record, the}^ wouldn't ask for 
Alexandria, Va., North Carolina or New Jersey. So the mere existence 
of the one record was in itself misleading because the applicant could 
have no record in the District and a long record in Mar3dand. 

Mr. Edwards. ^Slr. Wiggins, do you want to proceed for a while? 

Mr. Wiggins. Should the arrest record be restricted to law enforce- 
ment agencies only? 

Mr. Duncan. I would be willing to go that far, sir. I think that for 
law enforcement purposes, all available record information should be 
made available to law enforcement agencies. I do think that an arrest 
record, \nthout a conviction, is so highly misleading that it should not 
be disseminated. I would be in favor of limiting it that way. 

Mr. Wiggins. Should an arrest record be subject to subpena in 
civil litigation? 

Mr. Duncan. That would depend, Mr. Congressman, on what the 
issue was. I can't answer that. 

Mr. Wiggins. Well, let's say there is a personal injury case involving 
an automobile accident in which an arrest resulted, and there may be 
information on the arrest record or arrest report bearing upon an issue 
involving that litigation. 

Mr. Duncan. In the District, the general rule is that criminal 
i:)roceedings arising out of traffic involvements are not admissible in 
personal injury trials resulting from the same transaction. Another 
case possibly would be an assault and batter\' case — the ci^^l case 
for assault and battery — where the defendant had in fact been ar- 
rested for assault and battery on tliree or four occasions. That is a 
close c^uestion. 

Mr. Wiggins. What do vou think the answer to that close ciuestion 
is? 

Mr. Duncan. Personalh', I would not make that information 
available. I think that the defendant is on the stand, he can be asked 
whether or not he had been aiTested for assault and battery previously 
and his testimony is available for that purpose. 

The arrest record can only be used to impeach him anyw^^v. 

Mr. W^iggins. Should it be denied for that purpose? 

Mr. Duncan. I think a procedure could be worked out whereby 
such record could be used for impeachment purposes. There is prece- 
dent for that. 

Mr. Wiggins. Now the bill speaks of an an-est record, and that 
term is defined in the bill. Yet I su])pose across the country there 
may be a lack of uniformity in the forms themsehes. Some arrest 
records, conceivably, in some jurisdictions might include a narrative 
statement by the police officer of the facts surrounding the arrest. 

Should that be available, not for the purpose of i)roving the fact 
of arrest, but rather for the purposes of impeaching the police officer, 
or for some similar purpose in a nonlaw enforcement setting? By that 
I mean in a court setting? 

Mr. Duncan. I would give the same answer, IMr. Wiggins. I 
think where a witness is on the stand and has testified and that 
testimony is inconsistent with some prior statement that he has made, 
I think for impeachment purposes it ought to be made available. 

I am frank to confess I haven't thought whether under the bill 
as drafted, it would be available for that purpose. I would assume 
not. 



36 

Mr. Wiggins. The term arrest record in the act is defined to inchide, 
among other things — I will refer to the definitional section on page 8, 
section 3108, subdivision d, which defines the term criminal arrest 
record — related data, including fingeri)rints. Do you believe that 
simjjly a fingerprint should be denied to a nonlaw enforcement 
official if it is used for the purpose of identification or some other 
purj)oses? 

Mr. Duncan. Well, put that way, no, I don't. But I have difficulty 
imagining how that situation would arise. As I understand the purpose 
of the bill, it is to jirotect persons who have been arrested and finger- 
])rinted and the record of that arrest is kei)t in the local files of the 
arresting jurisdiction and ijresumabh" sent to the Federal Bureau of 
Investigation, and unless that ])erson is convicted, I think he has a 
strong interest in not having the fact that he was arrested and his 
fingerprints disseminated even for benign purposes. 

Personall}^ I don't find it objectionable if I were the subject, but 
I have talked to enough people to have the sense many peo[)le object 
to it strenuously. 

Mr. Wiggins. You use the term "arrest record and fingerprints." 
I would rather review it, at least for the purpose of this question, dis- 
junctively and to separate the fingerprints. I am wondering what 
public interest is served by demang a set of prints to an individual for 
some })urpose related to identification and not for the purpose of 
demonstrating the man's arrest in a prior incident? 

Mr. Duncan. Normally, identification only becomes an issue in a 
criminal proceeding or in the case of accidental or other death, where 
for an insurance company, or for purposes of filling out a death certifi- 
cate, identification becomes significant. 

As I understand fingerprints, it might be that a fingerprint taken in 
connection with a single arrest may be the only fingerprint available 
for that i)urpose and it would be a means of identification. 

Mr. Wiggins. Yes. Well, I gather your answer would be ])erhaps 
uncertain as to what is the proper course to follow in this area, but 
you are not particularly offended by the notion of making fingerprints 
available for identification purposes, if under proper reguhxtion or 
statutory language it were not for the purpose of proving the man's 
prior involvement in a criminal arrest. 

Mr. Duncan. Put that way, I would agree with you, but I would 
also say if that were written into the bill it would tend to defeat in 
part the purpose of the bill which is to protect the individual from the 
maintenance of records b}^ the Government for benign or nonbenign 
reasons, and I think the instances where benign use is appropriate 
would be very, very seldom. 

I can think of no case except perhaps some homicides, and identifica- 
tion in say an airplane crash where the question of identification would 
turn on a fingerprint. 

Mr. Wiggins. The illustrations you make are not insignificant. It 
would be, I would think oft'hand, at least, a shame if the identify of 
a deceased person could not be determined because a Federal statute 
prohibited the fingerprint which would be proof of that identit}^ from 
being disseminated. 

Mr. Duncan. Sir, there is no question that both of those uses would 
be legitimate uses, but I think that is a step beyond the initial question 
which is whether or not the Government ought to maintain fingerprints 



37 

incident to arrest records on the off chance that they may be useful 
some day in the future. 

Mr. Wiggins. I would think it would be possible to separate a finger- 
print record from a criminal arrest record. In other words, we all have 
our fingerprints taken from time to time and I suppose somewhere in 
this great bureaucracy they are maintained and can be retrieved by 
some computer. I would not think it to be at least obviousW contrary 
to pubhc interest if fingerprints procured as a result of arrest were 
added to that bank of fingerprints, but physically separated from the 
arrest record. 

Mr. Duncan. I would have no problem with that at all, none at all. 

Mr. Wiggins. Is it your understanding that the thrust of this bill 
is to permit the dissemination of certain arrest records among public 
law enforcement agencies only? 

]Mr. Duncan. That is correct. 

]Mr. Wiggins. And not a private law enforcement agency such as a 
detective agency or private guard arrangement in some mercantile 
establishment? 

]Mr. Duncan. That is m}^ understanding; yes, sir. 

Air. Wiggins. I would like to s&y for the record, and may I tell 
counsel, I am not convinced the statute is drafted to pro^dde that. The 
definition of a law enforcement agency includes, again referring back 
to 3108, "An}' activity pertaining to crime prevention," without mak- 
ing it clear that it is intended to be a public activity. Just so 1 won't 
forget it in the markup session, I call it to j^our attention, too. 

I will have more questions, Mr. Chairman, but I yield to Mr. 
Keating. 

Mr. Edwards. Yes, Mr. Keating. 

Mr. Keating. In your opinion, Mr. Duncan, would it be possible 
to enter into e\'idence a record of a plea of guilt}' in a situation pro- 
posed by Congressman Wiggins in a ci\dl action resulting from a 
personal injury matter — could you use in court the fact of a plea of 
guilty either in the form of payment of fine or the plea entered into 
the record during the trial of the case for a traffic violation? 

]Mr. Duncan. I have seen that happen in the District. I have also 
seen it happen interjurisdiction, a Maryland plea used in the District 
of Columbia. But as I understand the bill, it does not prohibit the 
dissemination of ci^dl records. It is criminal arrest records, including 
misdemeanors and disorderly conduct. 

Mr. Edwards. That is correct. 

Mr. Keating. I can recall having seen quite a few of these arrest 
records over a period of years. They are most difficult to understand, 
and at the conclusion of a trial when the arrest record was handed to 
me prior to sentence, I can recall spending quite a bit of time trying 
to determine the disposition and sometimes having two or three pages 
with maybe only one conviction. 

Mr. Duncan. Exactly. 

Mr. Keating. And it is a very real problem even for those who had 
some experience, much less those who were inexperienced in the field. 
Of course, some of the charges were quite serious and there was never 
any prosecution, maybe no indictment, maybe not even a binding 
over to the Grand Jury. But they did appear as being heinous felonies, 
^^^thout any possibility of going beyond the accusation, sometimes 
made by a neighbor, the charges not even being filed by a law enforce- 
ment agency. We had an aw^ul lot of that. 



38 

So I can understand the problem inv^olved and the reasons for this 
particular type of bill. 

I do have a couple of questions in regard to it, and I think Congress- 
man Wiggins raised some very important points. I notice that you 
limit the arrest records to no more than 2 years old. What, to you, 
would be an ap}:)ropriate period? Is 2 years the projier period — 1 year, 
2 years, 3 years? 

Mr. Duncan. It is a judgmental thing. I think the 2 years is an 
appropriate period. If any prosecution is going to be commenced it 
normally would be commenced within a 2-year period. 

With times changing as rapidly as they do, what happened more 
than 2 years ago in this area is probably not significant. We use a 10- 
year period, but that was a 10-year period on convictions, not arrests. 

As I read this bill, I think the 2-year limitation is an appropriate 
one. 

Mr. Keating. We had in traffic violations in our area, by self- 
restraint or self-imposed restraint, the judiciary only goes back 3 
years for a traffic conviction. There is no law regulating that in my 
commimity, but they go back onh' 3 years for convictions and 
eliminate arrests, but in other criminal cases they still use these 
records that are really prejudicial in the disposition of a case to a 
defendant in many instances. 

I don't have any further questions. I think the points raised, as I 
mentioned by Congressman Wiggins are very pertinent and I am 
interested in giving those further consideration. 

Mr. Edwards. Mr. Jacobs. 

Mr. Jacobs. I would like to wish my good friend Mr. Duncan good 
day and apologize for being tardy for the testimony. I shall read it 
carefully. Thank you very much, sir. 

Mr. Duncan. Thank you. 

Mr. Zeifman. Mr. Duncan, aside from the question of the defini- 
tion of law enforcement in the bill, as a matter of policy, could you 
give us your view as to what types of agencies you would consider to 
be law enforcement agencies? 

Mr. Duncan. In the report of the Commission's Committee in 1966, 
we went to some lengths to spell that out. We specifically included 
the metropolitan and other police departments, the Federal Bureau of 
Investigation, any State or county police department, however 
designated, sheriff's offices, et cetera. We also included the various 
other Federal law enforcement agencies, such as the Secret Service. 
We tried to make it as broad as we could and found that even our 
broad definition missed some legitimate uses of arrest records which 
we had not intended to preclude. 

For example, in the District, investigators for the Welfare Depart- 
ment sometimes would seek this information in investigating welfare 
fraud cases and we had to amend or interpret our report to make it 
clear that arrest records ought to be made available to a welfare 
investigator who was investigating a welfare fraud case. 

Mr. Zeifman. Would you consider the Internal Revenue Service a 
law enforcement agency? 

Mr. Duncan. I would to the extent, but only to the extent it was 
investigating a criminal charge against the defendant for nonfiling of 
income tax or concealment or something like that. 



39 

Mr. Zeifman. How about various types of municipal State licensing 
authorities, for example, some licensing authority that licenses people 
to distribute alcohol? 

jNIr. Duncan. The committee considered that question, and we 
decided that certain uses of arrest records, for example, by the 
Department of Motor Vehicles, which I referred to in my testimony, 
would routinely seek arrest records for juveniles to determine their 
fitness to receive learner's permits in the District. We saw no purpose 
for that and interpreted our own report to preclude such use of arrest 
records. 

I think frankly on the question of administrative agencies who had 
occasion to issue a license or not based on moral fitness or that concept 
of moral fitness, liquor licenses, certain locksmiths, professions like 
that, 1 believe, withovit being certain that the committee concluded 
that the arrest without conviction record was not evidence of moral 
character and I tliink we interpreted the report not to extend to that 
use. 

Mr. Zeifman. Under the bill, there is a provision which permits a 
Federal court to lift the prohibition if there were some, what the bills 
refers to as, compelling public interest. 

Do you have any view of what kind of ch'cumstances you would 
consider to be a compelling public interest? 

Mr. Duncan. Would you refer me to that section, please? 

Mr. Zeifman. Section 3105 on page 5 and page 6, line 7. 

Mr. Duncan. Yes. Well, to use the traditional illustration, I think 
in cases involving the national security, I think that would constitute 
compelling interest. I frankly don't tliink of any other, offhand, 
although I can imagine there would be some. 

Mr. Zeifman. Let me give you a hypothetical case. Suppose a per- 
son were arrested in one city for molesting children and suppose that 
the leading witness had a heart attack and as a result, the case was 
eventually non-pros and then the same person moved to another city, 
was again arrested for molesting a child and again for some reason not 
related to the merits of the case, there was no prosecution or conviction. 

To draw that on further, suppose there was a long history of this 
sort of thing, including perhaps even a psychiatric commitment of 
the person. 

Under those circumstances, would 3'OU saj'' there was compelling 
public interest in allowing the record to be disseminated for law en- 
forcement purposes? 

Mr. Duncan. I would not for two reasons. First, I don't know 
what the record of arrest without conviction would prove in a sub- 
sequent criminal proceeding unless the issue was whether he had ever 
been arrested before. I am also aware that there are cases which are 
not prosecuted, too many cases which are not prosecuted for reasons 
unrelated to the merits, but if you take the totality of arrests the vast 
majority of them are prosecuted or are non-prossed. 

And I think unless the defendant has in fact been convicted, using 
the arrest record alone becomes very, very dangerous, and therefore 
I would not consider that to be a compelling reason. 

Mr. Wiggins. If counsel would yield on that particular point, 
there are classes of cases which are generally known as victimless 
crimes. I would include within that gambling, various sex offenses, 



40 

and some narcotic cases could be so classified. Because they are victim- 
less in the normal sense, prosecutions are often difficult. 

If one looks at arrest records frequent!}^, I think it would occur 
often that an individual ma^^ have multiple arrests for certain classes 
of crime — gambling, for example— without having any convictions, 
and also in the sex cases. I guess the question I am asking is, where 
there is all that smoke, is there any reason to believe there is fire in 
that kind of case? 

Mr. Duncan. Certainly, in a gambling situation, where there is 
smoke there usually is fire and it is difficult to convict in that area. 
But I still go back to the fundamental proposition that under the 
Constitution the Government is charged with convicting a person 
arrested for an offense under certain evidentiary rules and if the Gov- 
ernment for any reason cannot do that or chooses not to do that, the 
arrest record then becomes immaterial. 

Mr. Wiggins. A bank teller, for example, is being considered for 
employment. I would think the employer is going to find out what he 
can about the qualifications to be a bank teller and if he showed a 
weakness in the past for gambling, for example, I would think the 
bank president ought to very curious about that. 

Could 3^011 imagine any circumstances under which it would be 
appropriate to reveal that data upon some request, even though there 
were no convictions? 

Mr. Duncan. Well, I think a judgment has to be made as in all of 
these cases, and whenever you adopt policy, there are always some 
bad consequences which flow from that policy. The committee on which 
I served considered that problem and we concluded that the employer 
today has a variety of means of acquiring information about the 
])erspective employee, just as the FBI acquires information about 
perspective appointees, and we felt even in the case of the bank, 
unless the defendant had in fact been convicted, the aiTcst record 
should not be made available because the employer could interrogate 
the employee, interrogate friends of the employee, could examine the 
employee's work record and history with other employers and talk 
to those employers and in general get a profile of his reliability without 
relying on the arrest record. 

Air. Wiggins. You have no objection to the inquiry, you just really 
object to finding out the answer in a definitive sort of way? 

Mr. Duncan. Not at all. I tliink obviously if 3^011 look at just one 
individual and one emploj^ment situation and one history of gambling" 
arrest, it would make sense to make that arrest information available 
to the employer. But if you look at the broad context of the variety 
of uses which are made of arrest records, I, at least, make the judg- 
ment that the potential for harm is so great as to outweigh that one 
case and I would deny it in that one case. 

Mr. Wiggins. I can understand that. I think it might be possible, 
although difficult, to develop a list of sensitive jobs, and develop a 
companion list of arrests which relate to the sensitivity of the job 
for the puri^ose of sorting out an exception. 

For example, I would think a school district intending to employ a 
schoolteacher should know if that person has a long history of sex 
oft'enses with juveniles even though they may not have resulted in 
conviction. 



41 

Mr. Duncan. As a lawyer I would have to say if he has not been 
convicted of any offenses he does not have a long history of sex 
offenses. 

Mr. Wiggins. You are entitled to make that statement. And I am 
entitled to say that the school district is entitled to make the judgment 
in these types of victimless crimes where prosecutions are infrequent, 
even though arrests are common. 

I have other questions, but I would yield back to let you complete 
your questions, Air. Zeifman. 

Mr. Zeifman. I have just one more question. Would you permit 
the use of aiTest records to establish a specific fact. For example, if a 
person were arrested in San Francisco 3 years ago, and the question 
were to arise either in civil or criminal litigation, "Were you in fact 
in San Francisco 3 years ago," the arrest record could be relevant 
to establishing the fact that he either was there or not there. In some 
cases, it could work the opposite way. The person could say, "I 
could not have been in San Francisco because that day I was arrested 
in New York." 

Would you permit that kind of thing? 

Mr. Duncan. Well, I think those are collateral uses of arrest 
records, uses of arrest records to establish collateral facts, and quite 
frankly, I haven't thought enough about that problem to have a very 
firm opinion. 

In general, I would say that the decision has to be made as to 
whether arrest records are going to be maintained and disseminated 
beyond a certain i)eriod of time for any purpose and once you make 
that judgment that they are not to be, then these coUateral uses 
which, albeit vahd when alluded to, nonetheless constitute a very, 
very small percentage of the total number of cases. 

Mr. Jacobs. Would counsel yield? 

Mr. Duncan, in reply to one of the previous questions, you logic- 
all}'^ said that the only purpose served by evidence of prior arrest 
was to show an arrest itself, not an implication of guilt, not an im- 
plication of \sTongdoing at all. The onl^^ valid use might be to show, I 
believe your words were, if it were at issue. And I take it b}^ that you 
mean legitimate relevant issue in a determination of fact — if it were 
at issue whether a person in fact was arrested. 

I just wondered if your response to that might relate to the question 
just asked by counsel, and if an intelligent exception along those 
lines might be indicated? 

Mr. Duncan. I think that distinction could be made except that 
would not be a collateral use. The question there is, "Were you 
arrested," and the arrest record would be relevant on that question. 

Mr. Jacobs. Yes. I just take it that what we are deahng with 
here is rules of evidence, whether a person is arrested for an offense. 
That is not the same as the question as to whether arrest without 
conviction is probative as to whether the individual in any way 
could be connected to the offense for which was arrested. 

I mean if they tried to convict him 90 times. That would be the 
issue. Whereas tlie issue the counsel raises is as to whether or not he 
is telling the truth on the stand. 'T was arrested in New York on 
that day." 

It seems to me we should try very hard to find exceptions in order 
to serve the cause of justice either way. 



42 

Mr. Zeifman. I have one more question. Do you have any reason 
to believe on the basis of your study that there is any need for legishx- 
tion affecting the judicial use of arrest records? In other words, do 
you have any indication that the courts are misusing arrest records? 

Mr. Duncan. Not directly, no. In our report we include courts 
and related offices as being within the law enforcement process and 
therefore did not restrict the use of arrest records in courts. I have no 
indication that judges misuse arrest records, although I would be 
naive if I didn't assume that a judge who has before him for sentencing 
a defendant who has a long history of arrests, but not convictions, 
takes that into account. 

Mr. Edwards. Mr. Garrison. 

Mr. Garrison. How would you state the overriding reason for 
making this great distinction in your report in the District between 
the use of raw unevaluated arrest data by law enforcement agencies 
and such use by nonlaw enforcement agencies? 

Mr. Duncan. I think that grew just out of the charge which we 
were given by the Board of Commissioners. We were not asked to 
make recommendations about the use of arrest records in general. 
We were asked to make recommendations about the use of arrest 
records with respect to the employment problem in the District of 
Columbia. 

The committee tried to confine itself to the em])loyment problem 
and as a matter, I think of convenience, and i)robably policy, we again 
tried to make it perfectly clear we were not getting into the law 
enforcement area. We were just talking about the use of these for 
employment purposes. 

I realize that the problem before this committee is a different one. 
I think that my committee's position on that point therefore is not 
helpful to this committee. 

Mr. Garrison. As for your own personal view of the matter, in 
light of the evidence which your committee uncovered, would it be 
fair to say that we should assume that raw unevaluated arrest data 
supplied by one police agency to another poHce agency will not be 
put to a harmful use, that is, it will be evaluated before it is put to a 
use in the hands of the receiving agency? 

Mr. Duncan. I think that would be fair. It would be my personal 
view that inter-law enforcement agency coo])eration and exchange of 
information should be preserved to the fullest extent possible for law 
enforcement purposes. I would put no restriction on the use of arrest 
records or any other records for law enforcement purpose for making a 
case for determining whether there is probable cause to arrest an 
individual or not. 

Wlien it gets out of the law enforcement field I begin to have 
problems. 

Mr. Wiggins. If counsel would yield on that one point. As you 
know, the bill before us prohibits the maintenance of records even by 
law enforcement agencies in certain cases. Do I understand your 
response to counsel's question to be an objection to that feature? 

Mr. Duncan. No, I do not. If the arrest record may be lawfully 
maintained then it should be usable within law enforcement agencies. 
I do support the particular provision that prohibits the maintenance 
of arrest records in certain instances simply because I have personally 
been involved in enough cases to know the people who have done 
nothing at all have arrest records and they are aggrieved about it. 



43 

I think the clear case is occasionally the wTong individual is arrested. 
There is a confusion in names. I have seen cases like that. John J. 
Smith born in 1929 was arrested when the police were looking for 
John J. Smith born in 1931 and they admit they have the wrong 
individual. He shouldn't have an arrest record to follow him the rest 
of his life. 

Mr. Garrison. It seems, though, that when you talk about the use 
for legitimate law enforcement purposes, you seem to assume that law 
enforcement agencies will be very discriminating in the use to which 
they put the information that is given to them, in other words, that 
they will investigate the implications of the data they have been 
supplied, isn't that right? 

Mr. Duncan. Yes. 

Mr. Garrison. So my question, put another way is this: If your 
committee had found that the practice of some private and Govern- 
ment agencies whereby there was an initial investigation of the arrest 
data which the ultimate screening agency never saw — some first layer 
of screening took place but then the hiring decision was made by 
someone else based on evaluated arrest data rather than the initial 
unevaluated arrest data — had been typical, rather than exceptional, 
might not your whole attitude about the extent to which the data 
should be disseminated for private purposes have been different? 

Mr. Duncan. Are you saying that if in the hiring process there had 
been some intelligent screening of the arrest record? 

Mr. Garrison. Yes — evaluation of it more akin to what you appar- 
ently assume occurs in the pohce process. 

Mr. Duncan. To be very frank, if that were the fact, I think we 
would have felt differently about our recommendations. That was not 
the fact. As Congressman Keating pointed out, the average arrest 
record is difficult for people to read, even for people who work with 
them all the time. It is uiu'eaUstic to expect that laymen, if you will, 
in any significant numbers, could intelligently evaluate arrest records 
in the multivarious forms they are maintained throughout the country. 

Mr. Garrison. In order to avoid the possibiUty of throwing the 
baby out with the bath water, though, in particular instances such as 
where, though no conviction had resulted, a string of arrests may have 
probative value for poUce purposes and may have equal probative 
value for employment purposes (such as a bank's needing to know 
that this particular individual in 5 years had been three times arrested 
for embezzlement but never convicted), would you think it would be 
worth the committee's time to explore devising conditions which 
might be imposed upon the dissemination of data to private employers, 
rather than blanketly to forbid all dissemination to private agencies? 

Mr. Duncan. I would say not and I say it realizing that this is a 
point with respect to which reasonable people differ. Our committee 
made the judgment, and I make the judgment that if the arrest record 
does not result in a conviction, it is largely meaningless, even a string 
of arrests for the same offense. 

If the Government had evidence somewhere along the line that the 
defendant had committed the offense, he would be prosecuted and 
presumably convicted. Short of that, I think that the record in fact 
does not have any weight. 

Air. Keating. Would you yield for a cpestion? 

Mr. Garrison. Those are all the questions I have. 

78-242—72 i 



44 

Mr. Keating. May I ask one question. We talk about a 2-year 
limitation on the use of records and dissemination of records and the 
])rohibition against maintaining any record, in effect, going back more 
than 2 years in the absence of ]:)rosecution. 

Are you in effect establishing, in a practical sense, a statute of 
limitation of 2 years? 

Air. Duncan. No, I don't think so. As I read the 2 -year provision, 
it relates to the case of an arrest record more than 2 years old where 
the defendant has not been convicted of a felony. So it is a 2-year 
statute on the use of arrest records among agencies. I don't understand 
that that record cannot be maintained. It just can't be disseminated 
to another law enforcement agency. 

As I read the bill, the record that can't be maintained at all is the 
one which has been expunged under State law. Is that not correct? 

Mr. Wiggins. That is not entirely correct. The bill in section 3102 
prohibits the dissemination of certain types of records and it specifies 
those types and then over on the following page, in subdivision (d) 
of that section, it prohibits the maintenance of any record that cannot 
be disseminated, except pursuant to court order. 

Mr. Duncan. I am sorry. You are correct. I misread that. 

Mr. Keating. It is that subsection that made me consider the 
possibility of this establishment of a statute of limitation in certain 
cases where they make an arrest. I am just wondering if the practical 
effect of that may not be something that really isn't desired; namely, 
the ])lacing a 2-year statute of limitation. 

Mr. Duncan. That would in effect be a 2-year limitation on the 
maintenance of criminal arrest records. 

Mr. Keating. That is correct, but isn't it prohibiting the dissemi- 
nation or, by chance, the finding of that arrest or some material in 
connection with it, or disseminating it to another jurisdiction where 
they might have information concerning that arrest that develops 
over a period of time? 

Mr. Duncan. I would say so. I am not ])repared to say that no 
arrest record more than 2 years old is worth keeping for any purpose. 
I am not prepared to go that far. 

On the other hand, I do feel strongly that old arrest records not 
resulting in convictions are not worth very much. So somew^here in 
between I would have to make up my mind. 

Mr. Wiggins. Would you yield at that point? 

Mr. Keating. Yes. 

Mr. Wiggins. There is a classification problem in this section 
3102. It says that records which do not result in conviction, basicall}^ 
may not be disseminated and may not be maintained. But there is 
also the classification that if the man has one felony conviction 
they may be disseminated and they may be maintained. Is that a 
rational classification? 

Mr. Duncan. I wondered what the purpose of that was, and it is 
not clear to me to whom such record can be disseminated in the 
event that the individual involved has been convicted of a felony. 
So I find it a little difficult to answer because I am not really sure as 
to the purpose of that. 

Mr. Wiggins. Well, presumabW a court may have that same 
trouble. I am wondering about the classification alone. Of course you 
have to know the purpose in order to make a judgment. 



45 

Mr. Edwards. Would you yield? It is a loophole that is put in on 
purpose. Felons from time to time lose certain constitutional rights 
and here is an instance \\ here he is going to lose some rights. 

Mr. Wiggins. Well, that is clear. But my question is to solicit 
your opinion as to the reasonableness of that discrimination or 
difference simply because a person has once been convicted of a felony. 

Mr. Duncan. I don't feel it is unreasonable. I have two sensitivities, 
one, where appropriate, to make arrest record information available 
for law enforcement or other relevant purposes as we have already 
discussed and in the case of the felon, the fact of his arrest may have 
some relevance for criminal investigation or other purposes. I am 
not offended by the provision. 

On the other hand, I am also sensitive to restricting the use of 
arrest records as much as possible. So I don't think it is an unreason- 
able provision, no. 

Mr. Edwards. Let's get back for a moment to the individual who 
applies for employment at the bank and who has 25 arrests, but no 
convictions for embezzlement or gambling. It has been suggested, 
just for argument sake, I believe, that perhaps this arrest record 
should be released to the bank because the bank would be very 
interested in whether or not tliis gentleman has been arrested 25 
times for gambling. 

If it is released to the bank, it could be said he has been convicted 
25 times of gambling. He is not going to get the job. The effect is 
going to be the same, is it not, as if he had been convicted 25 times? 

Mr. Duncan. Well, that is the danger of the whole business of dis- 
seminating arrest records, that in the minds of many laymen, it hasn't 
clearl}^ come out. "Do you have a record?" in the mmds of most people 
means, "Have you ever been arrested?" not, "Have you ever been 
convicted?" And we spent a lot of time in trying to clarity in the 
witness' mind and indeed in the minds of the members of the committee 
just what "criminal record" is and that is really the danger of using 
records indiscriminately. 

The fact that a person has been arrested convcA's the im_plication of 
conviction or at least an implication of guilt in the minds of many 
people and that is why I take the position I do. 

Air. Edwmrds. In implementing changes recommended bj^ your com- 
mittee and approved by the board of commissioners, the District of 
Columbia Police Department was directed to release arrest records in 
such form that they reflected only arrests which resulted in convictions 
and forfeiture of collateral. 

Did that add an unacceptable burden of paperwork on the police 
department? 

Mr. Duncan. It did not, as a matter of fact, because it decreased 
substantially the number of requests for arrest record information. 
The department had to revise its forms. It could no longer xerox and 
hand it out. It had to devise a form in which someone would type the 
date of arrest, the offense, and disposition. 

Mr. Edwards. Suppose the arrests were in Richmond, Va., and a 
notation was in the file of Washington, D.C. Would that require the 
clerk to communicate with the prosecutor in Richmond? 

Mr. Duncan. It is my impression, without being sure, that the only 
arrest maintained in the central arrest record file are local arrests; 
District of Columbia arrests. That is not to say that the department 



4G 

does not have somewhere else arrest mformation on a given mdividual 
from wherever in the country, but the statutory required arrest record 
file we were talking about, I think, reflects only District of Columbia 
arrests. 

Mr. Edwakds. The last question I have refers to a statement that 
appears on page 9 of the Duncan report itself. 

Although it was stated to be the local policy or local requirement in New York 
City, Los Angeles, San Francisco and Bostfm that arrest records shall not be 
released for private purposes, it appears that influential employers may often 
obtain such information notwithstanding the local or policj^ prohibition. 

How would these influential parties get the arrest records in these 
cities? 

Mr. Duncan. Normally through employees of the department, 
either civilian employees or police officers. 1 have no doubt that some 
of that went on in our department at that time and I would assume 
that it goes on to some extent today. I don't know how much. It would 
have to come from people who have access within the department to 
the information. 

Mr. Edwards. Are there other questions? 

Mr. Zeifman. I have just one. 

Mr. Duncan, on that point, there are really two sources of arrest 
information that are available to the local i)olice, for example, in the 
District of Columbia — well, there are other sources as well, but there 
are two sources I have in mind now. 

One is their own arrest records and also they have a much larger 
source in terms of the FBI. 

Mr. Duncan. Yes. 

Air. Zeifman. Did you find any indication that influential people, 
as they were referred to, were able to persuade local police officials 
to also tap into the FBI files to get from the FBI the FBI's so-called 
rap sheet, and then disseminate that to the local employer? 

Mr. Duncan. I have no evidence of that at all. I can surmise, I 
can say, that the prosecutors file also included the District of Columbia 
arrest record, a copy of it, and a copy of the FBI arrest record. It is 
readily available to local police officers. Whether they in fact make 
those uses of it, I have no evidence. 

Mr. Edwards. Thank you, Mr. Duncan. Your testimony was 
extremely helpful. 

Our next witness is Dr. Robert Gallati, who is currently the director 
of the New York State Identification and Intelligence System, a 
computer based information system serving the criminal justice com- 
munity of New York State. 

Before his apj^ointment to this position in 1964, Dr. Gallati served 
with the New York City Police Department for 27 years. Dr. Gallati 
received a doctoral degree in jurisprudence summa cum laude at 
Brooklyn Law School in 1957 and is presently a candidate for a 
degree of doctor of public administration at New York University. 
He is a inember of the bar of the State of New York, admitted to prac- 
tice in the U.S. Suj^reme Court and a number of other jurisdictions. 

As a member of the International Association of Chiefs of Police, 
he has served the association in a number of capacities. Dr. Gallati 
is ap])earing today in his capacity as chairman of the Project SEARCH 
Committee on Securit}^ and Privacy of the International Association 
of Chiefs of Police. 

Is that correct? 



47 

TESTIMONY OF DR. ROBERT GALLATI, DIRECTOR. NEW YORK STATE 
IDENTIFICATION AND INTELLIGENCE SYSTEM 

Mr, Gallati. No, sir; if I may correct you, sir. Project SEARCH 
is a system for electronic analysis and retrieval of criminal histories 
which is an LEAA funded i)roject. It is a consortium of States. We 
produced the basic prototype on which the NCIC, FBI criminal 
histories record program is based. 

Mr. Edwards. I understand, thank you. You may proceed. 

Mr. Gallati. Thank you very much, Mr. Chairman. 

Gentlemen, I ai)preciate the honor of appearing before this very 
important committee. And as the chairman has indicated, I am here 
as a spokesman for the Project Group which is the policj^making 
grouji of the project named Project SEARCH which again, I repeat, 
is the system for electronic analysis and retrieval of criminal histories. 

I am delighted to have this opportunity to present to 3'ou the 
considered opinion of both the Security and Privacy Committee of 
Project SEARCH of which I am chairman and the considered opinion 
of the policymaking grou]) of ^SEARCH, the Project Group which has 
endorsed the Securit}^ and Privacy Committee's recommendations 
relative to this bill. 

The Project Group of SEARCH is vitally interested and concerned 
with the problems related to the dissemmation of criminal arrest 
records. As I said. Project SEARCH is funded by the Law Enforce- 
ment Assistance Administration and obvioush*, therefore, it comes 
within the purview of this bill. It is a consortium of States. Twenty 
are presently represented and we successfully created and demon- 
strated an interstate network of computerized criminal justice finger- 
print identification systems served b\ a national central index. 

As I am sure you are aware, follo^^'ing this successful prototype of 
testing and demonstration the Attorney General made a decision to 
lodge responsibility for the management of an operational interstate 
criminal history exchange system in the National Crime Information 
Center, NCIC, which is operated by the Federal Bureau of Investiga- 
tion. This new NCIC computerized criminal history program became 
operational in November of last year. 

In the very beginning of Project SEARCH, the States involved were 
concerned about problems of security and privacy in the operation 
of thi, system for the computerized interstate exchange of criminal 
history and as a result, the Securitj^ and Privacy Committee became 
a standing committee of the Project Group. 

I have had the privilege to serve as the chairman since its inception 
in 1969. As a result of the deliberations of our committee, we have 
published three documents to date: Technical Report No. 2, which I 
see Congressman Jacobs has in his hands, entitled "Security and 
Privacy Considerations in Criminal Histor\^ Information Systems." 

Our second publication was Technical Memo No. 3, "Alodel State 
Act for Criminal Offender Record Information." And the third 
publication, which just came off the press within the last 4 weeks, 
Technical Memo No. 4, "Model Administrative Regulations for 
Criminal Offender Record Information." 

(Technical Report No. 2 has been reproduced and appears at p. 201 ; 
Technical Report Nos. 3 and 4 are on file with the subcommittee.) 

The Security and Privac}' Committee also produced a fourth 
document, "Security Recommendations for Criminal Offender 



48 

Record Information System," and it is anticipated we will be 
publishing this before the end of April. 

These documents contain the distilled thinking of the representatives 
of the 20 States that presently comprise the Search project group. 
Every paragraph, indeed, I might sa}^ almost every sentence of these 
})ublications was carefully evaluated, critically examined and it has 
continuously been reviewed b}' these people who rej^resent some of 
the Nation's most knowledgeable peoi)le in the field of criminal 
offender record information. I would like to commend these documents 
to you for your consideration in connection with j^our deliberations 
concerning H.R. 13315. 

We, in Project Search, heartih^ endorse the objectives of H.R. 13315. 
We take this to be a significant effort to provide for the dissemination 
and use of criminal arrest records in a manner that insures their 
security and privacy without unduly interfering in the need of law 
enforcement. 

This is consistent with the position of Project SEARCH, that com- 
puterized criminal justice information systems are essential and such 
S3"stems can be developed and operated with adequate security against 
unreasonable invasion of privacy. They can be so developed and 
operated as to provide new dimensions of jiersonal freedom and pro- 
tection of civil liberties and constitutional rights. 

The fundamental goal of the SEARCH group is to achieve a balance 
of justice between the need of the Government to obtain information 
about offenders and the Government's responsibility to protect 
civil liberties. 

Within this frame of reference, I would like to express to you, 
Mr. Chairman, and members of the committee, certain specific 
comments reflecting the considered o])inion of the members of the 
Project Group of SEARCH. Indeed, as you said, Mr. Chairman, I 
ap])ear here today in my capacity as a member of that group com- 
missioned by the Project Group to make this presentation on their 
behalf. 

The group, as I said, a])])lauds the bill's concern about the improper 
use of arrest records. We are, however, somewhat uncertain as to 
what is meant by the term "criminal arrest record." Section 3108, 
subdivision d, states that "The term 'criminal arrest record' means 
records and reiatetl data (including finger])rints) compiled by law 
enforcement agencies for purposes of identifying criminal offenders 
and alleged offenders and maintaining as to such ])ersons summaries 
of arrests and the nature and disi)osition of criminal charges arising 
out of such arrests." 

A literal interpretation of this definition would seem to include 
criminal arrest records with and without disj^ositions. If this under- 
standing is correct, then it appears that section 3102(a)(1) could be 
subject to misinterpretation since in most cases where there have been 
dispositions obviously there would be no prosecution pending in a 
court. 

The precise meaning of the term "criminal arrest record" is critical, 
I think, to the evaluation of this and several other sections of the bill. 
Section 3101 effectivel}^ prohibits the possibility of dissemination of 
criminal arrest records to other than — and I assume here the point 
that was made before about the law enforcement agencies being public 
law enforcement agencies and perhaps this should be emphasized in the 



49 

bill — but assuming that the term criminal arrest record in the context 
of 3101 means the record of an arrest without a conviction, there are 
still serious problems involved in the implementation of this section. 

One, obtaining dispositions is a difficult matter in most States and 
as a result there are man}^ convictions imrecorded, as Congressman 
Keating indicated before. Second, many arrests are in process and no 
final disposition is available. 

And third, where a person has been convicted of a crime, where he 
has previously been convicted of a crime, it would appear that sub- 
sequent arrests of that person would have special significance and 
perhaps probative value in many cases. 

The implementation of section 3101, even if it is interpreted to 
forbid dissemination (to other than a law enforcement agency) only of 
those criminal arrest records not resulting in a conviction, would 
seriously disrupt Federal and State laws relating to applicant license 
screening. 

Indeed, it could mean that all such regulatory and applicant matters 
as now exist would have to be handled direct!}^ by law enforcement 
agencies and they would not be permitted to disclose the record upon 
which they base some adverse decision. 

The Project Group respectfully" recommends to you, Mr. Chairman 
and to the committee, the alternatives presented in "Model Adminis- 
trative Regulations for Criminal Offender Record Information." 
These regulations provide for the expunging of criminal arrest records 
of first offenders and also the closing — not expunging, but closing, 
mind 3'ou — of the entire criminal file of convicted offenders deemed to 
be rehabilitated. 

In reference to section 3102(a), the Project Group desires to call 
to 3^our attention again the very serious problem of obtaining data 
concerning the status of oft"enders subsequent to the submission of 
arrest prints. It would place an enormous burden upon the hoKler of 
criminal arrest records to require him to ascertain in each case which 
record he can disseminate or indeed even continue to maintain as 
indicated in subdivision (d) of 3102. 

We are somewhat concerned also as to exactly what is meant by 
3102 subdivision (a)(1). It says, "relating to an arrest which oc- 
curred more than 2 vears before the date of such dissemination and 
concerning which there is no prosecution pending in a court." 

What would this mean, for example, in terms of acquittal? Does 
this mean there would be no prosecution pending if the acquittal had 
been arrived at. Would it relate only to those cases which have not 
been brought to the attention of a court, have not been subject to 
court jurisdiction and processing, or would it mean also those cases 
which were acquitted? 

If I understand the previous witness, Mr. Duncan, correctly, he 
has made the assumption that it means we woidd no longer maintain 
records for dissemination if there was other than a conviction. 

The project group is pleased to note that the bill recognizes in 
section 3102(c) that special treatment of the criminal arrest records 
of con\dcted felons is warranted. We are concerneti, however, Avith 
the fact that many offenders properly arrested for felonies are per- 
mitted to plea to misdemeanors and also many offenders have records 
of multiple convictions of very serious misdemeanors. These, too, we 
believe, warrant special treatment. 



50 

Mr. Edwards. What is a verj^ serious misdemeanor? 

Mr. Gallati. Well, when you speak of a felony, of course, this is 
a technical term in most States. Giving an example from my own 
State, New York, we have misdemeanors which are so serious that 
before the recent Criminal Procedure Law they were the only mis- 
demeanors fingerprinted. Some of these would be such crimes as of 
possession of burglars' tools, receiving stolen property, unlawful 
entry of a building, aiding escape from prison, using or carrying fire- 
arms illegally, et cetera. These are misdemeanors considered so seri- 
ous as to be almost of the grade of felon}^ but have never been so 
designated. 

There are rather serious misdemeanors in many other States. 

The Project Group strongly endorses the right enunciated in 
section 3103 of every person to inspect his o^^^l criminal arrest record 
and, of course, here we assume the term would include arrest followed 
by conviction; indeed, the entire record. That is the record concerning 
himself, of course. 

We are, however, deeply disturbed by the final sentence of section 
3103 which states that such person may request disclosure of the 
names of all persons to whom such officer or employee transmitted or 
communicated such arrest record during the 6-month period preceding 
the request. 

Even assuming that we are dealing here only with the arrest records 
without conviction, it is submitted that law-enforcement agencies 
conducting confidential investigations should have the capabilit}^ of 
access to the records without having their efforts nullified by disclosure. 

It would appear this would turn into a ritual for organized criminals 
and other active offenders to check u]) every 6 months on who is 
checking up on them. The Project Group approves the provision of 
remedies in section 3104 where maintenance or dissennnation by any 
officer or employee of the United States is in violation of the provi- 
sions of this bill, or where information in a criminal arrest record is 
incorrect. 

Nevertheless, we ciuestion whether there should not be procedures 
available for remedies which would obviate need to involve so august 
a body as the U.S. district court. 

We recommended in the Model State Act that a Criminal Offender 
Record Information Security and Privacy Council be appointed by 
the Governors of the various States to perform these kinds of func- 
tions, subject of course to appeal to the courts. 

In view of the extensive application of this bill to Federal, State 
and local agencies, it appears that remedies additional to petitioning 
the U.S. district court might well be in order. 

We would like to conclude our comments by once again compli- 
menting 3'ou, Mr. Chairman, for 3'our efforts to prohibit the improper 
use of arrest records, a goal shared with the Project Group of Search. 
We have provided, as a consortium of States, an alternative method 
of achieving the same objectives and we do believe in the princi})le of 
subsidiary. 

We believe a higher level of Government should not perform a func- 
tion that can adequately be performed at a lower level. We would 
encourage Federal legislation designed to assure that ever}^ State 
passed legislation containing the recommendations set forth in the 
model State regulations. IVIan}' States are currently preparing legis- 



51 

lation to protect security and privacy in criminal justice information 
systems. 

It appears theii* thrust should be supported and preemptive legis- 
lation should be carefully considered in the light of these mdigenous 
efforts. 

Mr. Chairman and members of the committee, I am most grateful 
to you for your kind attention. I am gratified b}" your interest m 
securit}^ and privacy and your concern about the individual's right of 
privacy and we hoi)e to be helpful in whatever way we can possibly be. 

Mr. Edwards. Thank a'ou ver}' much, Dr. Gallati. You seem to 
have a problem, which is that these re])orting agencies — let's say a 
State police recordkeeping office — would have a great deal of difficulty 
in sending out accurate arrest records under this bill. 

Are 3'ou saying that the burden of determining disposition prior to 
disseminating a record would be too much for a police agency? Are 
you sa3'ing it is too much of a burden on the reporting agency? 

Mr. Gallati. As a practical matter at the moment, these resources 
are not generall}- available throughout the United States. I think the 
situation will improve considerably over the next several years with 
the application of computer capability. 

For example, in the State of New York, we have a thrust now by 
the judicial conference, which is the administrative board of the 
criminal courts, and they are collecting data from the courts relative 
to the progress of people through the courts. The}' would have the 
offender records collected, put on a computer and then pro\dde them 
to the New York State Identification Intelligence Sj'stem which main- 
tains a statewide criminal offender record file. These tapes would be 
merged with the arrest tapes and we would have a pretty substantial 
record of the progress of each arrestee from the point of arrest to his 
dis])osition bj' the courts. 

However, at this moment in the State of New York, we have not 
achieved the ultimate by any means. Five counties of New York 
City and two additional counties have now been covered by this 
judicial conference reporting sj^stem, but we have the rest' of the 
State that has to be taken care of. 

Our situation, I understand, is not at all unique and, as anybody 
who has looked at arrest records will aver, they are frequently missing 
dispositions and the ability to determine just where in the judicial 
SA'stem a particular offender may stand at any particular time is 
definitel}^ a tremendous and enormous problem for any State or even 
local criminal offender record information file. 

Mr. Edwards. You listened to Mr. Duncan, who said his com.- 
mittee's recom,m.endation created no problem in the District of 
Columbia with regard to emploj^er requests. He indicated that their 
first result was to reduce the number of requests by tenfold, and 
second, the result was to limit dissemination to those records 
which were in process of prosecution or had conviction records or 
collateral forfeiture. 

You are saying it would still be very difficult in a cit}' like New 
York. 

Mr. Gallati. It is ver^^ difficult, I understand, generally through- 
out the United States. I am not familiar Avith the specific problems 
in the District. I should imagine there might be a better system in 
the District than generally obtains throughout the States because of 



52 

the tremendous territory, if nothing else, in the other States, or the 
other jurisdictions. 

Mr. Edwards. But you think the hmitations imposed by the bill 
ought to be achieved in New York and California and elsewhere, you 
think that the purposes of the bill are correct and that the indis- 
criminate dissemination of arrest records should be curtailed? 

Mr. Gallati. Well, when you say indiscriminate, I certainly would 
agree with you, Mr. Chairman. 

Mr. Edwards. Aren't they being indiscriminately disseminated 
toda}^? 

Mr. Gallati. I think we should definitely obtain as much in- 
formation as we can about the subsequent happenings to an offender 
once the arrest has been made. We have little difficulty getting the 
arrest record, as you know. Fingerprints are normally taken at the 
arrest scene or in the station house covering the arrest scene at least, 
and these prints are sent to the State bureau in most States and to 
the FBI and one copy is maintained for whatever recordkeeping is 
maintained by the arresting jurisdiction. This we get without any 
problem. 

Wliat happens after that is the problem for certainly State bureaus 
and it is likewise a i)roblem for many municipal bureaus and it is 
indeed a problem for the FBI as recent letters from the Dh'ector would 
indicate. 

Mr. Edwards. In chapter 2 of your study jou. recommended that 
the disseminating agency keep a record of all participants who have 
been sent records and that within a State a record should be kept 
of agencies to which a record has been released. 

So I suppose that j^ou therefore favor the same provision in our bill 
with the condition that you don't approve, and the committee has 
had problems with the provision starting at paragraph 6, page 5, 
"That upon, such request disclose to such person the name of all 
persons." 

Why? Wliat is the basis for your recommendation, of disclosing the 
names of persons to whom this information has been disseminated? 

Mr. Gallati. There are, Mr. Chairman, two reasons. One is, of 
course, it makes it possible to audit the activities of the disseminating 
agency to make certain that the dissemination is ap[)ropriate. There 
are many ways of auditing, as I am sure you are aw are. If excessive 
dissemination was given to a small agencv which did not have that 
kind of requirement for it, that might be an indication in the audit 
that there was something a little rotten in Denmark. That woidd be 
one way in which this could be used for auditing i)uri)oses. 

The second ver}^ valid requirement for maintaining this listing of 
disseminees, would be where there has been an order sealing the record, 
closing the record or expunging the record or correcting the record. 
Indeed, where a person came in and indicated that the record was 
incorrect in some way and indeed it was incorrect, we should be able 
to go back to those ])eople to whom this record was^ disseminated and 
advise them of the new status of the record they have received so 
they can correct whatever record they have in their files or to whom- 
ever they may have disseminated on the secondary dissemination. 

Mr. Edwards. Thank you, Mr. Wiggins. 

Mr. Wiggins. Yes, sir, I have several questions, some of which you 
have answered in your testimony. 



53 

I would like you to commeut on why it would be improper for a 
person to inquire as to who is looking into his criminal record? You 
gave the example that figures in organized crime would find out who 
is looking at their records. I wonder \\'hat is wrong with that? 

Mr. Gallati. Well, I suspect that there are many investigations 
going on by Federal, State, and local agencies in which the investiga- 
tion, be it grand jury investigation or a D. A. -sponsored investigation, 
or a State commission investigation of some kind, in which the 
investigation would be seriously hampered or thwarted by the fact 
that the person realized he was under investigation. The very need to 
develoj) the type of material that you would require for purposes of 
this in\"estigation would [K>rhaps be obviated by the fact he knew he 
was under investigation. 

\h. Wiggins. I can understand that. I would like you to refer to 
the bill, or at least your notes concerning it, and the definition of 
crimmal arrest records. You commented on that, you recall, during 
your testimony. 

Mr. Gallati. Yes, sir. 

Mr. Wiggins. Is it a common practice among law enforcement 
agencies to maintain files on identifying marks that may not be related 
to a named indi\4dual, and they maj' also be related to a named 
individual? 

For example, someone who has a tattoo of something, a name, on 
his arm, that sort of data — is that a common police practice? 

Mr. Gallati. I would say it is, sir. This could be called a personal 
a]:)})earance ty]')e file or it is frequently combined with the modus 
ojierandi file. These are what we call analytical type files. The}' lead 
you by some evidence, either appearance evidence, or trace evidence 
to the possible identity of the person who had that ai)pearance or 
had left that trace evidence. 

These are not generally \\'hat we consider to be people files in the 
sense that they mereh' lead you to a people type file and help you to 
conduct an investigation and possibly identify some person whom 
you feel might be the person committing the particular act Ahich is 
criminal. 

Mr. Wiggins. I am sure it is jour view that we should not so 
tightly define criminal arrest records as to prohibit the maintenance 
of files such as you have described. 

Mr. Gallati. I would certainly take that position and we have very 
carefully eliminated that from our definition in the Model State Act. 

Mr. Wiggins. Now, what about the case of a man who has not 
been arrested but there may be a warrant for his arrest. I take it also 
to be your position that there should be no prohibition against dis- 
semination of the fact that a warrant for a man's arrest may be held 
in a given jurisdiction. That is your view, is it not? 

Mr. Gallati. That is definitely my view. I think the distinction 
has to be made again between warrants and criminal oflfender record 
information in that the very nature of a warrant is such that you want 
to i)ublicize this. 

In fact, we tack them on the post office walls, as we know. I don't 
think that the person against ^^■hom a warrant has been issued has any 
claim to a right of privacy, otherwise the whole system of warrants 
would be in jeopardy. 

Mr. Wiggins. That is right. But it does highlight some inconsisten- 
cies concerning the status of the person who has a warrant out for his 



54 

arrest. He has all sorts of vile allegations made concerning his mis- 
conduct which would be piu'ged the minute they arrest him. But we 
will pass to another issue. 

In most jurisdictions the following things tend to occur when a man 
is arrested. He is booked, fingerprinted and a record is maintained by 
the arresting agency of that arrest. Then the arresting agency will 
take that information to some prosecutorial agency, district attorney 
or county prosecutor, and a companion record will start at that point 
which is a record, let's saj', of the district attorney. 

Thereafter, the district attorney may, and in most cases does, 
proceed to court by the filing of a criminal complaint, indictment or 
whatever the procedure may be and a court record is established at 
that point as well. 

We take the position normally that a court record, a docket notation, 
is a public record open to inspection by anyone at any time. Do you 
think it is possible to circumvent the whole ]Durpose of this bill by 
commercial agencies who seem to want this information sim]:>]y 
developing techniques to find out what is on court dockets? 

As you know, many cases are docketed that result in no prosecu- 
tion, result in dismissals and result in acquittals. Do you think it is 
possible to circumvent everything in the bill — like in the title busi- 
ness—by inspecting court records and making that information 
available to interested parties? 

Mr. Gallati. Mr. Congressman, I was very interested in your 
comment, because not only did you raise this question of whether or 
not peojjle could obtain these types of data through other sources, 
but I think your comments pointed uj) also the ])roblem involved in 
this statute, where under certain conditions you may not even main- 
tain these records, let along disseminate them. Not only does the police 
agency itself maintain these records, but the FBI maintains them, the 
State bureau maintains them, the district attorney, as you said, 
maintains them. Court probation officers maintain them and indeed, 
if there was a conviction, of course, there would be maintenance also 
at the parole and correction level. 

And to get to all of these people the good news that this should be 
no longer maintained might be a tremendous task and enormously 
difficult as I pointed out in terms of resources. 

But to get to the point of your question, we are aware, very much 
aware, in the State of New York of the interest of jjrivate investigating 
firms, such as Pinkerton, in obtaining criminal arrest records or 
criminal ofiender record information as Ave have defined it. They can 
indeed go to the courts right now and obtain this as public record 
data. Indeed, the blotters maintained in the station houses are public 
record data, although not generally made available as such. 

Indeed, all the records that are in the normal criminal arrest record 
files are public record data items as such, but when collated and 
compiled we considered them confidential. They can do this. But 
they are not about to do it because of the tremendous expense involved 
in collecting data in this regard. They also have available to them 
potentially, of course, the compiled records at the FBI, at the State 
bureaus and at the municipal bureaus, until they are totally cut oflp, 
and I think Mr. Duncan pointed out that perha])s from time to time 
some of our personnel are not as scrupulous as they should be about 
their conduct, and these records are obtained in these cases. 



55 

Until such time as we have pkigged all the loopholes, I don't think 
they are going to go to the trouble of going around to each court. 

Mr. Wiggins. One of the problems that is so evident is that the 
police agencies tend to lose control of the case, and the prosecutor 
thereafter is in a unique position to know the disposition while the 
police agency really does not know. They may have a notation that 
the officers are to appear and testify, but as to the disposition of the 
case, it is almost entirely out of the hands of the police agencies. 

Mr. Gallati. That is correct. 

Mr. Wiggins. One final question. Let's suppose that Joe Doe is 
arrested, booked, and he has an arrest record which can only be dis- 
seminated, according to this statute, to other police agencies, but a 
reporter for the Washington Post comes in and says, "Did you arrest 
Joe Doe?" Do you think a police officer would be permitted to answer 
that question? 

Mr. Gallati. Not under this statute, sir. 

Mr. Wiggins. My guess is the Washington Post would test the 
constitutionahty of the statute very quickly, and that is an issue that 
we ought just to explore because I am sure that we do not intend — I 
don't think we intend — inadvertently to hamper what is generally 
regarded by the press as freedom of the press. But, on the other hand, 
what could be worse in terms of putting a black mark on a man's 
character than to have the Washington Post put the lurid details of 
the arrest on the front page? 

I have no further questions. 

Mr. Edwards. Also you would have the problem of the newspaper's 
reporting on a daily basis who was arrested. They would not be able 
to do it under this bill and perhaps that is entirely appropriate. We 
don't know yet. 

Mr. Wiggins. It raises some important collateral questions. 

Mr. Gallati. In this connection, if I may, Mr. Chairman, call to 
your attention the fact that one of the best sources of obtaining arrest 
data is your newspaper morgues. 

Mr. Edwards. Mr. Jacobs. 

Mr. Jacobs. Sir, I join with the other members of the committee 
in expressing my gratitude for the trouble you have taken in coming 
here to testify. Just on this point that Congressman Wiggins raised, 
how would you relate this question to the English rule concerning 
pretrial publication of information concerning criminal matters? 

Mr. Gallati. Well, we have, of course, some pretty strict rules 
which most of us in the law enforcement profession are carrying 
around in our pockets — I think I have a copy now — fair trial, free 
press and what you can say and what you can't say. I think definitely 
there would be an uproar from the press if we failed to give them at 
least ■ 

Mr. Jacobs. I am speaking about the English rule which is 
markedly different as I understand it from an}^ rule of any jurisdiction 
in the United States that I know about, which is rather strict, actually, 
about pretrial publication of what ine\4tabh' seems fragmentary 
information. 

Mr. Gallati. I am not familiar with the exact rule. 

Mr. Jacobs. I can't recite it myself, but I think that is an accurate 
appraisal of the rule and I was wondering as a philosophical matter 
if you had an opinion about such a rule? 



56 

Mr. Gallati. Well, I find it somewhat difficult, personally, to 
conceive of the fact that j^ou wouldn't give out the facts, just the 
facts of an arrest to the press. What I would seriously object to, and 
it is being done all too frequently, is to give out the background of 
tliis person in terms of his arrest record, and I think this is one of the 
things I would object to philosophically and it is being done in some 
cases. 

Mr. Jacobs. I am thinking of one case in particular back home 
where a lady — if that is the word, she was later convicted — was 
charged with stabbing her husband to death and pushing him under 
the bed and getting a good night's sleep herself and waking up the 
next morning and calling the police and informing them. 

At her first appearance in the police court, she stepped outside in 
the hall with her attorney and submitted to questions by television 
reporters such as "Did you get a good night's sleep," and so forth. 
And at one point, if you can believe this, her lawyer interposed an 
objection — "I object to that on the ground that the question was 
posed by television reporters." 

I guess that is an extreme example of the problem that we are talking 
about here. But as I understand your answer, you are not offended 
by the statement of fact that "Mary Jones was arrested this afternoon 
on the charge of the murder of John Jones." 

Mr. Gallati. I find no problem personalh^ with that 

Mr. Jacobs. Fine, good. Thank you very much, Mr. Chairman. 

Mr. Edwards. Well, this bill would prohibit the local police de- 
partment from saying, "Yes, Mary Jones was arrested today," or do 
you disagree with that. 

Mr. Wiggins. I think that is an express term of the bill. 

Mr. Jacobs. The witness testified that he would find no objection 
to the subject with such a simple statement. I might go on to say I 
don't know what useful purpose it does serve to publish such in- 
formation. 

Mr. Edwards. Mr. Zeifman. 

Mr. Zeifman. Dr. Gallati, I take it that although you agree with 
the objectives of section 3102, it is your position that it would create 
insurmountable comphance purposes? 

Mr. Gallati. That is substantially correct, counsel. 

Mr. Zeifman. In that regard, could you give the subcommittee 
some indication of why there are compliance problems: Is it lack of 
facilities? is it the lack of computers, modem techniques? is it because 
of a lack of cooperation between the courts and the law enforcement 
officials? What is the source of the comphance difficulty? 

Mr. Gallati. Well, I think it is a whole combination of the factors 
that you mentioned. It is hard to pinpoint precisely where the prob- 
lem lies, but I think it is fair enough to say, for example, in the State 
of New York in the code of criminal procedm'e whicli we had in the 
State of New York prior to the enactment of the criminal procedural 
law, which was effective September of 1971, there was a provision in 
the old code which required the courts to submit to the central State 
agency dispositions of aU criminal cases in the courts. We did not 
get these reports from the courts. Indeed, we had to rely on the police 
departments throughout the State to go to the courts and give them 
to us. 



57 

Now this was, of course, a haphazard situation. We got good co- 
operation from the poHce offices' in some areas and in other areas they 
pleaded they didn't have the personnel available to get it. 

Under the present law there is not even an obligation on the courts. 

Mr. Zeifman. If one were to assume that the objectives should be 
obtained and one were to approach the problem, so to speak, solely 
from the point of view of information retrieval, to set up a system 
such as a system for identifying airlines reservations, has your group 
done any work on the subject of how much would it cost in the State 
of New York, for example, to have an information retrieval system 
that would work in a manner that would accomplish the objectives 
of both providing accurate data and insuring privacy? 

Mr. Gallati. Yes, indeed. The whole purpose of NCIC and those 
agencies such as the Judicial Conference which are interfaced now 
and vail be interfaced in a more effective way nationwide shorth^, 
is to do just this, to be able to monitor the progress of an offender 
from the point of arrest through the entire system. 

Mr. Zeifman. Do 3^ou have any estimate as to what such a system 
would cost in dollars and cents? 

Mr. Gallati. Of course our system is running over $7 million, 
about $7.3 million at the present time. The Judicial Conference 
system, I would suspect, in terms of its total cost, both the computer 
system at Judicial Conference headquarters and the time of the 
clerks — which is being charged to the system, I assure a^ou^ — to enter 
the data into the system, would probably be in the neighborhood of 
$1^/^ to $2 million. Of course, we are getting data routinely from 
other sources, such as upon incarceration we get prints as prisoners 
go to jail. We have no problems there. 

We are working with the probation people and getting their data 
into the system. I would sa}^ a State the size of New York could have 
ultimately a ver^^ effective, timely, accurate and complete criminal 
justice information S3"stem A\nth a total cost in terms of actual budget 
dollars of something around $10 milhon. 

Mr. Zeifman. And then you would have no objections? 

Mr. Gallati. Then I would have eliminated my objections cer- 
tainly on many of the provisions that are in here. 

Mr. Zeifman. If Congress were to take a slightly different approach 
than the approach in this bill and rather than have the pro\asions 
for expungement, if that is the correct word, or suppression of dissemi- 
nation, rather than having them operate in a self-executing manner, 
what would your view be of a system which would permit me, for 
example, if I were concerned with the arrest record problem, to inquire 
of the FBI as to the status of what kind of record I had, or to the New 
York State law enforcement people, and then after I looked at it, 
and determined that it was either accurate or inaccurate, and that 
it should be brought up-to-date, and that certain things ought no 
longer to be maintained and disseminated, if it were then corrected 
along those lines? 

Mr. Gallati. I think this would certainly be the only really truly 
practical approach today. In other words, it should be affirmative 
action on the part of the individual. Until such time as we get the 
millennium I am speaking of, which is not too far away, but which 
is the ideal situation where we can automatically take care of these 
things, I think there has to be affirmative burden on the individual 
to seek the expungement of his record. 



58 

Under New York law we have section 79E of the civil rights law, 
which provides that a person may expunge or move to expunge his 
record from any system which records his arrest records if a decision 
in that case has been in his favor. This is a ver}^ simple process. He 
merely has to request it, proving of course that he has a decision in his 
favor, and indeed the Urban Coalition Inc. has issued handbills which 
say this is a simple process. 

Mr. ZeiFxMan. Would this bill create less comphance problems, 
would it be more acceptable to you, for example, if the self-executing 
provisions applied only to the arrest records of the particular specific 
jurisdiction that was involved? 

In other words, if the New York City police were to have a require- 
ment for making sure that the arrest records relating to New York 
City arrests were in order, accurate, and contained reliable data? 

Mr. Gallati. Well, I think it would be certainly a lesser burden 
upon the FBI and the State bureaus and so on if the requirement was 
placed squarely upon the agency that originated the arrest. 

There are still problems however, and I assure you that New York 
Cit}" has problems, as well as other cities, in getting their dispositions. 
There are so many ways in which a case can be disposed of. It can be 
nullified by the district attorney or handled in the courts by different 
techniques. 

Mr. Zeifman. But doesn't the ver}^ existence of the fact that there 
are such problems and that they are so severe and that even the police 
and prosecutors themselves have difficulty in getting reliable accurate 
data, isn't that persuasive that there is a need to restrict the use of 
that unreliable information? 

Mr. Gallati. Well, I believe there is always a need to restrict this 
kind of data, reliable or unreliable, and obviousl}^ to the extent it is 
unreliable, there is a need to restrict it even greater. 

One of the problems that I see in a lot of the attempts to deal with 
this problem is that we do not attack it from the exact goal that we 
have. In other words, I think that the objective we have primarily 
here is to handle the applicant licensee situation. I tliink that we are 
not terribly concerned here with the fact of the exchange between law 
enforcement agencies, for law enforcement purposes, of arrest data 
regardless of whether it contained adequate additional information 
such as conviction and so on. 

Indeed, we may even feel that where acquittals occur that the data, 
certainly in cases of nonfu^st offenders — ^I think I would argue even 
if acquitted, this data should be obtained for purposes of utilization 
bv law enforcement agencies. And I would like to think that we could 
hone in on the real problem which is the use of this data by other than 
law enforcement agencies for other than law enforcement purposes; 
namely, applicant/licensee purposes. 

I feel very strongly that onh^ in limited cases should this data, 
regardless of whether it is characterized as being incomplete or 
complete, be given to other than governmental agencies and I think 
the number of cases in which it should be given out should be limited 
strictly to those where the legislature of the State or the council of 
the city permits fingerprinting for this particular type of inquiry. I am 
very disturbed about attempts to enter this system by other than 
fingerprints. We have a situation in which we have had some little 
misunderstanding with the American Civil Liberties Union in New 



m 

Vork. Our legislature passed a bill which provides for the finger- 
printing of people working in brokerage houses under the SEC 
jurisdiction. 

The way we handled this one was, we do not give in any case to any 
l)rivate employer or person a record of criminal record. We gave the 
criminal record to our attorney general. The fingerprints were taken 
by the Wall Street fii'nis, tum.ed over to the attorney general who 
forwartk'd them to the Central State Criminal Offender Record 
Information Bureau. We searched it and turned over our record or no 
record response to the attorney general. 

Now he does not communicate that record to the Wall Street fii"m 
at all, but he makes a decision under the general business law as to 
whether that person should be retained in Ms job so that even though 
we do not give this record to them at all, we do have an eft'ect upon 
the security of the securities industry and this, I think, is one of the 
ways m. which this can be handled. 

I \\oul(l deplore any attempt for a private person or private firm, 
whoever it might be, to obtain this information dhectly from our 
files. Of course, I recognize that the Federal Government has some 
special problems in this area and that is up to the Federal Government, 
but our feeling in New York is that there has to be sufficient reason for 
finger])rinting, in other words, 3'ou must convince the legislature that 
if this information is so necessary for any private fu'm therefore you 
should be able to justify fingerprinting the individual and we will not 
give it on a name search basis only. 

There are many things A\Tong ^^'ith that, as I am sure you are aware. 

Mr. Garrison. Under a fully operative sA^stem, in which all of the 
significant steps from arrest until either acc^uittal or release on parole 
are fed into the computer, can you generalize about how much time 
lag there would be between the event and the storing of its record in 
the data bank? 

For example, by reference to the computer, would one be able to 
know within 10 days after acquittal that the charge had resulted in an 
acquittal, or would it take 2 months? Wliat do you envision sjs the 
speed with which the data could be retrieved? 

Mr. Gallati. Wliat I envision and what exists at the moment in 
the developing system would be quite different. I would think that 
there would be no reason within a reasonable period of time that we 
should not be able to get this certainly within 10 days. We get now the 
records of the arrest in New York State by facsimile, so we get them 
in, well, half an hour after the arrest, so to speak. It takes 15 minutes 
to transmit it. 

Then, as far as the incarceration prints are concerned, these come 
by mail and we get them within 2 days. The record from probation 
and parole are forwarded cpiickly. 

Mr. Garrison. Is there a requirement that someone transmit to 
you the fact of an acc|uittal on that charge? 

Mr. Gallati. No, there is no requirement that they submit it to us. 
The judicial conference has assumed this responsibility and_ we sent 
them a tape of arrests. We record the arrests as a result of recei\T.ng the 
fingerprints. We send the tape down to the judicial conference and 
they produce from the tape a set of documents wntli the headers and 
so on. The}' forward them to the appropriate court. 

As the person proceeds tlirough the court process, they report back 
to the judicial conference for entry into their computer each step of the 

78-242 — 72 5 



60 

process. Now theoretically and when the system is operating at full 
potential, at any point in the process you would be able to know where 
this offender is now being handled by the court system, and, of course, 
upon the final determination of conviction or acquittal this would 
then go into the computer. 

All we are storing at the moment in our own computer is merely the 
arrest and the conviction or acquittal data. We get the final disposi- 
tion data from the judicial conference, but we could key into that com- 
puter and get the data in the ultimate S3stem. The system is still 
rudimentary. 

Mr. Garrison. If a local police agency today wants to know whether 
a person has been convicted or acquitted, what would be the timelag 
between the date of acquittal and the date you know of that acquittal 
if they come to you and try to get that information? 

jMr. Gallati. Well, it could be considerable, frankly, because we 
wouldn't have it up on our computer until we got the tape from the 
judicial conference. It could be several weeks. 

Mr. Garrison. Thank you. 

Mr. Edwards. Thank you very much. Dr. Gallati, for your ex- 
cellent testimony. You raised numerous questions to which w^e are 
going to have to give careful consideration. 

Mr. Gallati. Thank you. 

Mr. Edwards. The subcommittee will adjourn now until tomorrow 
at the same time in the same room when we will have a U.S. Depart- 
ment of Justice witness here. 

(Whereupon, at 12:15 p.m., the subcommittee recessed to reconvene 
at 10 a.m., Thursday, March 23, 1972.) 



DISSEMINATION AND USE OF CROIINAL ARREST 

RECORDS 



THURSDAY, MARCH 23, 1972 

House of Representatives, 

Subcommittee No. 4 of the 
Committee on the Judiciary, 

Washington, D.C. 

The subcommittee met at 10 a.m., pursuant to recess, in room 2237, 
Ra\-burn House Office Building, Hon. Don Edwards of California 
vchairman of the subcommittee) presiding. 

Present: Representatives Edwards, Wiggins, Keating, and McClory. 

Also present: Jerome M. Zeifman, counsel, Samuel A. Garrison 
in, associate counsel, and Alfred S. Josei)h 111, assistant counsel. 

Mr. Edwards. Subcommittee No. 4 of the House Committee on 
the Juchciary continues today its hearings on H.R. 13315, to provide 
for the dissemination and use of criminal arrest records in a manner 
that insures their security and privacy. We are pleased today to have 
representing the Department of Justice, a long time friend of the 
House Judiciary Committee, Donald E. Santarelh, Associate Deputy 
Attorney General. 

Mr. S^mtarelli, we welcome you, and would you identify the people 
you have \vith you? 

Mr. McClory. Mr. Chairman, would the Chairman yield? 

I would like to join in welcoming Mr. Santarelh to the hearings 
this morning. Since he served formerly as the Chief Minority Counsel 
of this committee, we know of his special talents which are now being 
enjoyed by the Justice Dei)artment, and I know of his talents and 
his ability and legal skill, so 1 know tliat he is going to make a genuine 
contribution to this subcommittee this morning. We welcome his 
testimony. 

Mr. Edwards. Thank 3^ou, Mr. McClory. 

TESTIMONY OF DONALD E. SANTARELLI, ASSOCIATE DEPUTY AT- 
TORNEY GENERAL FOR CRIMINAL JUSTICE, DEPARTMENT OF 
JUSTICE, ACCOMPANIED BY RICHARD W. VELDE, ASSOCIATE 
ADMINISTRATOR, LAW ENFORCEMENT ASSISTANCE ADMINIS- 
TRATION; AND BEVERLY E. PONDER, SECTION CHIEF, TECHNI- 
CAL SECTION, IDENTIFICATION DIVISION, FEDERAL BUREAU OF 
INVESTIGATION 

Mr. Santarelli. Thank you, Mr. Chairman, and Mr. McClory, 
for 3'Our very kind and over generous remarks. I have with me this 
morning to assist the subcommittee Mr. Richard W. Velde, on the 

(61) 



62 

rio'lit, who is Associate Administrator of Law Enforcement Assistance 
Administration and ver}' nuich interested in the subject matters of 
this morning's hearing. 

On my left, Mr. Beverly Ponder, who is the Section Chief, Tech- 
nical Section of the Identification Division of the Federal Bureau of 
Investigation, who will also be available to the subcommittee for tech- 
nical explanation of what is it they do, and how this bill affects them. 

Mr. Edwards. Mr. Ponder, as an ex-FBI agent, I welcome you. I 
was probabl}^ before 3'our time. 

Mr. Ponder. Thank 3'ou. 

Mr. Santarelli. Mr. Chairman, I appreciate the 0])iK)rtunity to 
a!)])ear before you this morning, to present the views of the De|)art- 
ment of Justice on PI.R. 13315, a bill "To provide for the dissemination 
and use of criminal arrest records in a manner that insures their 
security and privac}^" 

The Department of Justice is deeply concerned with the problems 
related to the dissemination of criminal arrest recortls. We accept the 
proposition that such records should be maintained and exchanged 
only within the framework of ajjpropriate restrictions that insure 
their security as well as protect the privacy of those individuals to 
^^•hom they refer. 

We are equally convinced, however, that the maintenance and 
dissemination of criminal arrest record information is sometimes an 
essential tool in preserving the peace and jH'otecting societj'^. 

In other words, as is so often the case in a free society, the Govern- 
ment's dut}^ to protect individuals from violence, and other criminal 
acts, must be balanced against the Government's responsibility to 
maintain and j:)reserve personal i)rivacy. 

As you may know, the Department has submitted legislation dealing 
with the issues of security and privacy of criminal justice information. 
We believe our proposal Mould achieve the ])roper balance between 
these competing interests. The bill was submitted to Congress in 
response to the mandate of section 7(7) of the Omnibus Crime Control 
Act of 1970, and was introduced by Congressmen McCulloch, Poff, 
Hutchinson, and McClorv as H.R.^ 10789, and bv Chairman Celler 
as H.R. 10892. 

Our bill covers sj^stems funded by the Law Enforcement Assistance 
Administration. The focus is one the electronic or computerized 
methods for disseminating and exchanging information. Because of 
this fact, the scope of the legislation is considerably different from 
that of H.R. 13315. 

But in another sense, H.R. 13315 is broader; it would inchule in 
its sco])e records compiled by Federal agencies, such as the FBI 
Identification Division's arrest record files, and by law enforcement 
agencies which receive LEAA funding. For ])ractical purposes, the 
bill covers criminal offender records maintained at all levels, Federal, 
State, and local. 

This distinction creates for us a fundamental problem with the bill, 
Mr. Chairman. It would impose Federal restrictions on the dissemina- 
tion of criminal arrest records at the local level. The bill would dictate 
to the local police chief how to handle an arrest record kept only by 
his department even though it had not been introduced into a national 
or interstate S3"stem. 

We believe that this is an unwarranted Federal intervention into 
local matters, matters which should be determined by State law. 



63 

Before I begin a discussion of specific sections of H.R. 13315, I 
would like to mention that we have been advised that the bill intends 
to deal only with "arrest records" as opposed to "conviction records." 
We understand that the bill would not prohibit the dissemination of 
an arrest record if that record constituted an element of a conviction 
record. 

In other w^ords, the bill would not apply to records that show an 
arrest followed by a conviction, whether the conviction be for a felony 
or misdemeanor. The bill would be ap])licable, however, to all records 
of arrest when no conviction resulted from that arrest. 

If this interpretation is in fact intended, then the definition of 
"criminal arrest record" is somewhat misleading because it includes 
"the nature and disposition of criminal charges arising out of such 
arrest." This language appears to sa}^ that an arrest record could 
also be a conviction record. If these two types of records are meant to 
be distinguished, we would recommend that it should be made explicit. 

Also, because H.R. 13315 would have a far-reaching effect on the 
FBI's repositor}' of criminal records, I believe that a brief description 
of that system w^ould be appropriate at this point. 

The Identification Division has existed in the Bureau since 1924. 
The fingerprint records maintained b}^ the Division — some 196 million 
in all — are divided into separate "criminal" and "'applicant" files. 
The criminal records, which would be affected by H.R. 13315. contain 
information on some 60 million arrests of about 20 million individuals. 
When a ])olice dejiartment sends a fingerprint card for an arrested 
})erson to the FBI, it is checked manually against this file. In the event 
of a "hit," the police receive a positive identification of the individual, 
plus a copy of his arrest record, or "rap sheet," after the current 
arrest information is added to it. 

Contributors of arrest cards are urged to submit followup informa- 
tion on the disposition of each arrest, but the FBI is not alwaA's suc- 
cessful in getting that information. 

Fingerprint cares are also received from agencies of the Federal 
and State governments and other authorized institutions seeking 
information on an individual's arrest record for purposes of employ- 
ment clearances and licensing. These cards are similarly checked 
against the criminal file. 

The volume of work in the Identification Division is veiy large. 
Some 3,300 emplo3^ees process about 25,000 fingerprint cards each day, 
about 14,000 of them from police agencies in connection with arrests. 

The contribution of the FBI arrest record file over the years to 
law-enforcement efforts throughout the country is truly incalculable. 
For this reason, Mr. Chairman, we w^ould urge the committee to give 
due consideration to the possible efl'ects that any legislation might 
have on the arrest record system. 

We fear, Mr. Chairman, that in its present form, H.R. 13315 does 
not take the above factors into consideration. On the contrary, 
H.R. 13315 vvould ini'pose intolerable and, in our view, unnecessary 
burdens on the Identification Division of the FBI. 

Projwsed section 3102, for exam])le, would require the Division 
to review manually each of the 20 million arrest records in order to 
eliminate from the fUes those over 2 years old and not containing prior 
felony convictions. 

In many instances, it cannot be determined whether the cited 
cliarge on the fingerprint card is or is not a felony under the a]^i)licable 



64 

State code. It would require us thereafter to follow every rej^orted 
arrest to determine if a conviction resulted within a 2-year period or 
if prosecution continued to be in a pending status. 

Such procedures would virtually eliminate the value of criminal 
identification records throughout the entire criminal justice system in 
this country and would place an intolerable burden upon the FBI 
which could not administer such a program without a massive increase 
in personnel. 

We process over 3 million arrest finger]:)rint cards jier year. It is 
obviously imj^ractical to follow up on each arrest to positivel,y ascertain 
if and when prosecution results. 

Section 3105 would ]iermit the Attorney General or a law enforce- 
ment officer to petition a Federal court for an order authorizing the 
use or maintenance of a criminal arrest record which is prohibited 
from being maintained or disseminated by section 3102. Section 3105 
and section 3102 are considered to have particular api)licability to 
fugitives from justice whose whereabouts are unkno\\'n for a period of 
more than 2 years. 

Under this bill, it would be necessary for the FBI or any law 
enforcement agency to obtain a court order in each instance where 
such fugitive status became apparent when there was no previous 
felony conviction in order to maintain arrest and identification data 
previously obtained concerning such individual. 

Mr. Edwards. May I interrupt you at that point. Where an 
individual has been arrested and has escaped and is a fugitive from 
justice, certainly a case where prosecution is ]:)ending? 

Mr. Santarelli. Well, that is susce})tible to an interpretation 
which isn't all that clear. If it is made clear that a prosecution pending 
is a case in which there is a fugitive situation, then that woidd be true. 

Mr. Wiggins. If the chairman would yield, I presume there are 
situations in which a warrant might be issued in advance of a i)rosecu- 
tion, and the ])erson who could be arrested under the warrant is a 
fugitive in the sense that he is fleeing the jurisdiction or fleeing at 
least that agency which is seeking him. 

So it would be possible, I think, in that situation to have a fugitive 
without a pending prosecution. 

Mr. Edwards. Air. Santarelli's statement is that the man was 
arrested and is a fugitive, so he certainly would be subject to the 
provisions of this bill. 

Mr. Santarelli. There is room for there to be slippage between 
an arrest in which there is no prosecution instituted because the 
information is insufficient, or the witness is not available, and since 
the defendant has escaped, the jirosecutor does not move forward 
with indictment, or information at that time. 

Technically, he would be a fugitive under the common meaning 
of the word. 

Mr. Edwards. Proceed. 

Mr. Santarelli. This would particularly affect the maintenance 
of fingerprint cards in FBI files by which many fugitives are detected 
and apprehended. This procedure is neither sufficient nor desirable 
in the operation of an effective law enforcement agency. 

Permit me to mention here that other Federal agencies, in addition 
to the Department of Justice, compile their own criminal identification 
records. An agency such as the Treasury Department, with its Alcohol, 



65 

Tobacco and Firearms Division have a legitimate need for maintaining 
their own files because of the law enforcement role assigned by Federal 
statute. 

Wliile I am not in a position to address myself to the particular 
j)rol)lems that might be faced by these other components of the Federal 
Government, I do beUeve that their views should be taken into ac- 
count in order to accurately determine the effect of the bill on their 
operations. 

In addition to the burdens it would impose on the FBI, as well as 
other Federal, State and local agencies, we have certain additional 
objections to H.R. 13315. Proposed section 3101 would prohibit the 
dissemination of criminal arrest records except to law enforcement 
officials. This prohibition could have harmful effects on our national 
secm-ity and our ability to maintain the integrity of our })ublic in- 
stitutions. 

For example, H.R. 13315 would completely prohibit the use of 
criminal arrest records for purposes of employment screening. Military 
facilities would be unable to properly evaluate the propriety of placing 
an applicant in a position where he would have access to sensitive 
information. A Government agency, attempting to fill a position in 
its ])ayroll office would not be able to determine if an applicant had 
been arrested for embezzlement. 

Mr. Wiggins. Would the gentleman yield for a question at this 
point. On that issue, Mr. Santarelli, is it not a fact that the bill origi- 
nally sponsored by the administration, which has not yet been re- 
ferred to this subcommittee, and introduced by Congressman Mc- 
Culloch and others provided for accessibility only for law enforcement 
agencies? 

Mr. Santarelli. No, not only for law enforcement agencies. 
Mr. Velde can explain that provision perhaps better than I. 

Mr. Velde. Yes, sir; under section 3(a) of the bill, it says, "criminal 
justice information" — and as defined in that bill, it applies to both 
intelligence and criminal history- information — "may be used onl}^ for 
law enforcement purposes or for such additional lawful pui'poses 
necessary for the proper enforcement or administration of other provi- 
sions of law as the Attorney General may prescribe by regulations 
issued under Section 6." 

This would include State laws, and most States have them, which 
make criminal histories available for employment checks, particularly 
by governmental agencies. The practice varies from State to State 
and, of course, there are also applicable Federal laws which apply for 
the hiring of public officials in the Federal Government. 

Mr. Edwards. It also would not apply to the FBI, as I read the 
bin. 

Mr. Velde. It would apply to certain systems in which the FBI is 
involved, but not all of its activities. It would not apply to the Identi- 
fication I)ivision; it would apply to the NCIC system, the automated 
criminal history record system. 

Mr. Edwards. Wliile we are not having a hearing on this bill 
today, I think we should observe that the bill gives to the Attorney 
General the final decision in almost all matters. There are very few 
congressional guidehnes in the administration's bill. 

If the State agency in Utah, shall we say, wanted to require licens- 
ing of barbers or gardners, as long as it was lawful, arrest records 
could be made available to an employer in the State of Utah. 



66 

Mr. Velde. Pursuant to State law, that is correct. 

Mr. Keating. Would the gentlemen yield for a moment? 

Mr. Edwards. Yes, of course, Mr. Keating. 

]\Ir. Keating}. On this point, we have in Cincinnati, Ohio, an 
excellent criminal information computer system. Project Clear, and 
their concern about this bill goes beyond what we are talking about 
here, and it is that this bill that has been submitted — and Congress- 
man Wiggins referred to this — indicates that the system must be used 
solely for law enforcement purposes. 

This is a problem in our community, because our system down there 
is being used for speeding up court dockets. We have an excellent 
s^'stem. W^e are far advanced over our State and most other areas of 
the country. 

We had a meeting with the Justice Department and they indicated 
that they would like to have discretionary powers on this requirement 
that systems be solely used for law enforcement purposes, if the 
proper guidelines for confidentiality of the information are provided 
for. They are very much concerned that they would have a lot of 
difficulty with managing their machine if they had to use it solely 
for that purpose and not have all this other input. 

Thej'^ could have safeguards, and I realize 1 am in the area of an- 
other bill, but it was referred to here, and I would like to know if you 
have any comment on whether the system has to be solely used for 
law enforcement information, or whether they could go into 
other areas? 

Mr. Velde. Congressman, with respect to the ai)plicability of 
both bills, the administration bill and H.R. 13315, law enforcement 
is broadh^ defined in the same way that it is used in the Omnibus 
Crime Control Act, so it would include courts and correctional agencies 
\\"ithin the definition of law enforcement. 

It is not the conventional definition of law enforcement that is 
limited only to police, but many of the criminal justice information 
SA'stems at the State and local level are what we call shared systems, 
where the hardware, principally for reasons of economy, is shared 
with other Government agencies who also haA^e data processing 
reciuirements. 

The administration's bill, however, would adhere to the principal 
of dedicated systems for criminal justice, and this, of course, would 
reqidre, if it is enacted into law, many State and local sj'stems to 
change their current operating policies. 

Mr. Keating. Which thej' would be unable to do. 

^Ir. Velde. Unless the}^ had additional resovu'ces. 

Mr. Keating. That is right, which the}^ don't. 

Mr. Santarelli. Mr. Keating, let us make it clear, this is not an 
unreasonable condition that we are im]:)osing in the administration's 
bill. Obviously the emphasis on a dedicated system is desirable, be- 
cause of the necessity for security, but that is subject obvioush^ to the 
limitations of resources and technologv. 

If it can be shown that the resources are imavailable to the com- 
munity to have the luxuiy of a dedicated system, and it can be shown 
that the technolog}^ of a shared system is sufficient to secure the 
system, then there is no reason why arbitrarih^ this statute would force 
the local jurisdiction to abandon a shared system with sufficient 
security but lack of resources, to take on a dedicated s^-stem. 



67 

All we are sa3dng is that the dedicated system is the best from an 
ideal standpoint, subject to the exceptions of technology and resource 
limitations. 

Mr. Keating. I think your statement is an excellent one. I think 
security is extremely important and if dedicated doesn't mean 
solely, at least the Justice Dei)artment, if they have the appropriate 
safeguards, can permit these other things and technolog}^ does permit 
the security that you desire. I wouldn't want it to be an arbitrary 

Mr. Santarelli. All we are saying is we would assume that the 
dedicated system is best, and we should look at that first. If it can be 
demonstrated that resources are unavailable to allow a cledicated 
system and that the shared system is secure, then an exception could 
be made for it. 

yir. Edwards. They would have an opportunity to demonstrate 
that point? 

Mr. Santarelli. Yes, sir. 

Mr. Keating. And the word "dedicated" wouldn't preclude Justice 
from permitting that demonstration? 

Mr. Santarelli. No, sir, all that does is state a presumption in 
favor of the ideal of the cledicated system. 

Mr. Keating. All right. They were reading it as if "dedicated" 
meant "exclusively" or "solely." 

Mr. Santarelli. It was not intended to be exclusively or solely. 

Mr. Keating. All right, thank you. 

^Ir. Santarelli. Equally disturbing is the fact that proposed 
section 3101 would prohibit the use of these records for employment 
screening in certain vital and sensitive industries in the private sector, 
such as "banking and securities. In such industries, the screening of 
applicants is a proper and necessary procedure designed to maintain 
the integrity of these institutions and to preserve the public confidence 
in them. 

What is more, the criminal arrest record could not be used for 
licensing purposes, even when this was required b}^ statute. Many 
jurisdictions require a check of the apphcant's arrest record ^before 
issuing a license to, for example, certain professional people, such as 
pharmacists, teachers, or attorne3's. 

Would it be wise to hide the fact that a pharmacist has a history of 
narcotics arrests, that a teacher was arrested for child molesting, or 
that an attorney had been arrested in a financial scandal? I submit 
that there are certain categories of individuals that must be thoroughly 
investigated before a license is issued because of the nature of the 
activit}^ which the license sanctions. The pubhc deserves this protection 
and we would be remiss to deny it. 

We recognize that such records are not always probative ,_ but when 
sensitive positions are being filled, we believe that there is nothing 
unreasonable about requesting an explanation from an applicant 
about an arrest. 

The foregoing objections to proposed section 3101 should not be 
interpreted as indicating that arrest records should be disseminated 
indiscriminately. On the contrary, we would suggest as an alternative 
to the outright ban of section 3101 that you consider the approach of 
section 3 of our proposal: A limitation of use to purposes required by 
law and even then, subject to approval by the Attorney General. 

Proposed section 3102 would prohibit the dissemination of a record 
pertaining to an arrest which is over 2 years old and for Avhich no 



68 

prosecution is pending if the subject of the record has not been 
convicted of a felony. This provision is unduly narrow. 

As mentioned, if a man is arrested and subsequently escapes froni 
custody, a literal reading of the section would prohibit the dissemina- 
tion of the arrest record if the individual remains a fugitive beyond 
the 2-year period. In addition, for one reason or another, a large num- 
ber of serious offenses go untried and a larger number of offenders who 
are tried are not convicted. For example, many sex offenders of 
children are not prosecuted because parents of the victim do not want 
to subject the child to the traumatic experience of testifying. 

Others are not tried because key evidence has been suppressed or 
witnesses are, or have been made, vmavailable. The latter situation is 
not uncommon in organized crime cases. 

It is always important to remember that our S3"stem of procedural 
protections, while protecting the innocent, also sometimes ];)rotects 
the guilty. While we fully support the procedural safeguards built 
into our criminal justice sj^stem, we do not believe they should be 
used as a barrier to effective and reasonable law enforcement. 

Arrest records are often of extreme value in not only the apprehen- 
sion of criminals, but in the prevention of crime. In many cases, the 
lapse of a 2-year period of time does not diminish their value. We, 
therefore, must strongly opjjose any blanket prohibition based only 
on an arbitrary 2-year period, whether or not the subject has had a 
felony conviction. 

As I have mentioned, some records are of little or no value, but the 
detrimental effects of j^rohibiting dissemination in all cases would far 
outweigh the good that would flow from eliminating those few in- 
stances where dissemination was imwarranted. 

In addition, the value of a previous arrest often cannot be deter- 
mined until long after the entry is made. Consider, for example, the 
fact that evidence of past misconduct for which there was no prosecu- 
tion may be admissible in court to prove the intent or motive on the 
part of the defendant or to covmter certain defenses which he raises. 

In a recent case from the U.S. Court of Appeals for the District 
of Columbia, an incident occurring 12 years ])revious, in which the 
defendant had threatened his common law wife with a shotgun, was 
admissible in evidence after he had raised the defense of accident in 
his trial for her murder. 

The court explained that the prior misconduct was admissible to 
cast doubt on his defense and to shed light on his motive. U.S. v. 
Babbitt , 459 F. 2d 685 (CADC) 1971. 

Mr. Edwards. Mr. Santarelli, may I interrupt you on that point 
and ask if you would change 3^our mind on the conclusion of that 
reading the Supreme Court's 5 to 4 decision yesterday that invalid prior 
convictions may not be used to discredit the credibihty of a defendant 
who takes the witness stand? This was the Loper v. Betto case. 

Mr. Santarelli. I haven't read that case, Mr. Chairman, but the 
newspa])er account of the case said that it concerned an invalid con- 
viction obtained, I believe, without the assistance of counsel at the 
original trial, and the Court held that it violated a previous ruling of 
the Court that counsel had to be present in every case. 

In the case to which I referred, there was no invalid prior conviction. 
The example is an arrest for threatening his common law wife with a 
shot£"un. 



69 

Mr. Edwards. Well, the common law wife might have not been 
telling the truth because there was no trial. 

Mr. Santarelli. That is very possible that these kinds of informa- 
tion are subject to varying degrees of probative value and that is 
what you submit them to coiu'ts for, for decisions on whether or not 
they are probative, and whether or not they are convincing. 

Mr. Edwards. Don't you think that this case 3'esterday in the 
Su])reme Court sounds like a stronger case than the one you referred 
to in 3'our testimony? 

Mr. Santarelli. I don't think so, because there the Court is saying 
clear!}' the original incident to which the prosecution refers is an 
incident without validity, because it was in violation of a constitu- 
tionally requu'ed right; namely the right to counsel. 

Under circumstances like that, neither you nor I would quarrel 
with the fact that a constitutional disability rendering a conviction 
or action improper has no value subsequently. This is not that kind 
of a case. 

Mr. Edw^ards. Well, there is another constitutional right, that a 
defendjuit is innocent until ])roven guilty. 

Mr. Santarelli. That is correct, and we are not operating here 
from the concept of proven guilt. We are operating from the concept 
of the i)robative valve of an arrest record. 

Mr. Edwards. You do admit this Supreme Court decision muddies 
the waters with regard to 3'our 

Mr. Santarelli. M3- reading of the newsjmper accounts of it 
r'aises a new issue, and without reading the case, 1 am not able 

Mr. Edwards. I don't think we can solve that problem this morn- 
ing. You may proceed. 

Mr. Santarelli. That part of proposed section 3103 which re- 
quires disclosure of the names of those persons to whom the aiTest 
record was transmitted during the preceding 6 months is also objec- 
tionable to us. 

It would enable a person currenth' under investigation to determine 
which agencies had an interest in him, and would give him the oppor- 
tunit3' to frustrate legitimate investigative efforts. This could prove 
disastrous in our effort against organized crime. 

Again, we do not believe that the advantages to be gained are suffi- 
cient to balance the great harm that could result. 

Proposed section 3104 allows an}' person who has reason to believe 
that a criminal arrest record is incorrect or will be maintained or 
disseminated in violation of the bill to petition a U.S. district court 
for an order correcting the record, or enjoining the unlawful conduct. 
This would place a further burtlen on the alread}' overcrowded judicial 
calendars. 

It is our view that the individual in seeking correction should first 
apph' to the contributing agenc3', and that the burden should be on 
that agenc3' to make an}' necessaiy changes. Suit should be filed only 
after administrative remedies have been exhausted. 

It should be noted that the FBI will correct information or return 
fingerprint cards to an agency upon rec^uest. As far as the Bureau is 
concerned, a direct suit would serve no worthwhile purpose and would 
likel}' delay the relief sought. 

We do not see the wisdom in permitting a suit to enjoin future 
maintenance or dissemination. If an3' cause of action is to be made 
available, it should not be available before a violation has occurred. 



70 

To do othermse will open up the courts to a host of nuisance suits 
based on an alleged, but unfounded, "reason to believe." 

We would suggest that in lieu of the unacceptable provisions of 
proposed sections 3103 and 3104, consideration be given to permitting 
an individual to re^dew and correct his arrest record A\'henever it is 
disseminated to a State or local agency for nonla\\' enforcement 
purposes, and to apply to the agency responsible for the inform.ation 
for correction. 

Section 3106 seems to iirovide the individual with statutory author- 
ity to obfuscate the truth concerning his criminal background. This 
provision goes beyond the integrity of the criminal arrest records 
themselves and seems to countenance outright dishonesty on the 
part of the individual. The Department of Justice fails to see what 
public interest this would serve. 

For the reasons I have discussed, the Department of Justice does 
not favor the enactment of H.R. 13315. I wish to reiterate, however, 
that we are greatly concerned \\'ith this problem and share the com- 
mittee's concern with it, and Ave recognize the inherent difficulties, 
and ofier suggestions to ameliorate presently existing undesirable 
conditions. 

Furtherro.ore, I greath^ appreciate the opportimity you have afforded 
me to present our views. While my remarks have been someA\hat 
critical, I hope they will be considered in the spirit in wliich they have 
been offered, for I believe that the subject requires a frank and serious 
discussion because of the profoimd questions which it raises. 

Many of these issues, ^Ir. Chairman, are highly technical in how 
the statutory language would apply to the actual operating of the 
record system. For that reason, Messrs. Ponder and Velde are particu- 
larly available to answer your questions of a technical nature that 
r am not able to answer. 

Mr. Edwards. Thank you verv much, Mr. Santarelli. As the De- 
partment of Justice witness, you speak for the FBI and LEAA, is that 
correct? 

Mr. Santarelli. That is correct. 

Mr. Edwards. Did they assist in the preparation of the testimony? 

Mr. Santarelli. That is correct. 

Mr. Edwards. Are you aware of any study concerning whether the 
use of criminal arrest records by law enforcement agencies improved 
the efficiency of these agencies in enforcing the law? 

Mr. Santarelli. I am not personal!}^ aware of studies of this 
nature. 

Mr. Velde or Mr. Ponder, do either of you know? 

Mr. Velde. I don't have any current recollection. I can make a 
check and if there are existing studies I will provide them for the 
record. 

Mr. Edwards. In other words, you assume that these arrest records 
assist law" enforcement agencies in doing their job? 

Mr. Santarelli. That isn't necessarily an assumption. There is a 
continual justification b}- the FBI for this. In their budget they obtain 
funds for the performance of the dissemination of these records to 
other Federal agencies and other non-Federal agencies, to perform 
that function. Without assuming anything, the justification offered 
by the Bureau at the Appropriations Committee hearings and the 
subsequent action by the Congress in approving those appropriations 
seems to sanction the desirability of that conduct. 



71 

Mr. Edwards. Well, receipt of such stiulies would be helpful, Mr. 
Velde. We thank you foryouroffer to search your records and see if there 
are an}" studies or if there is any evidence as to the use of these rap 
sheets, with respect to which some members of the committee and you 
have doubts with re2;ard to their reliabilitv, shall we sav, or fairness, or 
perhaps consistency with constitutional riohts of privacy. We would 
appreciate receiving information to that effect. 

Air. Velde. Yes, sir. I believe we could supply for the record, Mr. 
Chairman, a number of examples of the daily use of criminal histories 
not only arrest records, but complete criminal histories, in use by law 
enforcement agencies at the local. State and Federal level. 

There are countless uses made ever}^ tlay in operational law enforce- 
ment settings and arrest situations where an officer detains or questions 
a potential suspect. For instance, if there is an arrest outside of a 
schoolhouse where there has been a report of a child molesting case, 
and a quick call to the NCIC might verify whether or not this in- 
dividual had prior convictions or prior arrests on similar offenses which 
would give probable cause for arrest. 

Mr. Edwards. The District of Columbia Police Department 
Recordkeeping Di\dsion has instituted changes very similar to what 
this legislation suggests and recommends. 

So far we have no evidence to the effect that it has injured the en- 
forcement of the law in Washington. Indeed, the contrary is indicated, 
and I might also add it has imposed no great increased amount of work 
on the Recordkeeping Di\nsion of the Washington Police Department. 
Mr. Santarelli. That is a very different situation — — ■ 
Mr. Edwards. Yes; it has to do with emplo^^ers. 
Mr. Santarelli. From what we are talking about here. The Fed- 
eral bureau's volume and number of inputs is far greater in comparison 
to the District of Columbia — 800,000 as opposed to our 20 million 
across the country. 

What is being done in the District of Columbia is what is being 
proposed in the administration's bill, in that they are not making 
dissemination of records where they are not provided b}" law or by 
Federal regulation, and that is what we are proposing in the achnin- 
istration's bill — dissemination either to legitimate law enforcement 
interests, which I suspect you agree with, or those other agencies or 
requests that are sanctioned by law. 

Mr. Edwards. The District of Columbia does not furnish to an 

employer for a fee any arrest record where prosecution is not pending, 

or where it has been dismissed, or collateral has not been forfeited. 

It is asking for almost exactlv what our bill calls for. Thev think it 

is very unfair, especially with the inequitable treatment of two-thirds 

of the people of Washington, D.C., the minority race, to send to 

employers indiscriminatory arrest records and they stopped doing it. 

Mr. Santarelli. We agree with you, Mr. Chairman. 

Mr. Edwards. But you don't want to do it on a national basis. 

Mr. Santarelli. We are agreed with a'ou even on a national basis. 

The indiscriminate dissemination of arrest records to private employers 

or others is undesirable, and we agree that it ought not to be done. 

We are sajdng pursuant to lawful authority in the States, if they 

enact a statute requiring that kind of information, then we would 

want to comply with it, and think that to be legitimate. But if it is not 

a statutory kind of authorized dissemination, we do not support that. 



72 

If a private employer, not in the public interest and not sanctioned 
by statute wants to know of an FBI arrest record, that is something 
we do not support. 

Mr. Edwards. Well, earlier the testimony was that if the State of 
Utah had a licensing provision for barbers and requested an FBI rap 
sheet, you had no objection to the rap sheet going out, regardless of 
whether or not it had five arrests that were totally erroneous or had 
been dismissed, or he had been acquitted. 

Mr. Santarelli. That is not accurate. 

Mr. Velde. The release of all information is subject to approval by 
the Attorney General. 

Mr. Santarelli. Obviously the Attorney General is going to m.ake 
decisions as to the merits of the kind of c[uestions at issue. There is a 
question in my mind, without prejudging for the Attorney General, of 
the wisdom or desirability of our assistance to the State of Utah in its 
licensing of barbers, and it is certainly assumable that the Attorney 
General would exercise his judgment and discretion in a reasonable 
fashion in a case like that. 

Mr. Edwards. You think the Attorney General should make those 
decisions and not Congress? 

Mr. Santarelli. Not necessarily; but the Attorney General 
functioning as an executive has a broader range of discretion and 
flexibility than the Congress would have in enacting inflexible statutes. 

I think we would both agree that this is the general kind of function 
the Congress generally delegates to the executive branch, usuig its 
wisdom and its good judgment. I would be hard pressed to assist you 
to draft a statute that would cover all of these kmds of issues. 

Mr. Edwards. Section 534(b) of title 28 of the code provides that 
the exchange of records authorized by section 534 is subject to can- 
cellation if dissemination is made outside authorized departments or 
related agencies. This applies to you, Mr. Ponder, of the FBI. What is 
your estimate as to the availability of these rap sheets, these arrest 
records from the FBI, outside the j)ro])er recipients? 

Mr. Ponder. Mr. Chairman, we feel that the records are not 
further disseminated beyond the authorized agency receiving those 
records. The records are specifically disseminated in accordance with 
some existing regulations. The receiving agency is well aware of the 
restrictions placed on the receipt of these records and continued access 
to our files and so we know of very few cases in which the records have 
been misused after a receiving agency receives them. 

Mr. Edwards. How do you know? 

Mr. Ponder. Well, we know of a few cases that have come to light. 
But I would not know how many, if it did not come to light by 
somebody. 

Mr. Edwards. Have you ever canceled these privileges? 

Mr. Ponder. Yes, we have. 

Mr. Edwards. In what kmd of cases? 

Mr. Ponder. In cases where a record was received by an authorized 
agency and the record was misused for other than official business. 

Mr. Edvv^ards. You have agreements with the various States so that 
they can participate in the dissemination of rap sheets fi'om the 
National Crime Information Center, is that correct? These are written 
agreements you have with the various States? 

Mr. Ponder. That is correct. 



73 

Mr. Edwards. And with such institutions as banks, savings and 
loans? 

Mr. Ponder. Well, at the present time, the manual system does not 
have a written agreement with the private sector like the banking 
institutions. We simply get from the banking institutions a request for 
a record by the submission of a card of this type on w^hich we have 
already preprinted the name of the contractor. 

So we know this is the contractor's card, the bank's card. We 
process this through our files and it is returned to that bank with the 
check of our fdes. 

Mr. Edwards. I wonder, IMr. Ponder, if a^ou could pro\nde the com- 
mittee with a list of the cancellations made perhaps in the last 5 or 
10 years? 

Sir. Ponder. Yes, we could do that. 

(The following information was furnished to the subcommittee:) 

Following is a list of the agencies that were subject to cancellation of FBI 
identification services during the past ten years for the misuse of FBI identification 
records. However, no such listing is maintained of complaints received concerning 
an agency in which appropriate inquiry failed to substantiate the misuse of an 
FBI identification record or that corrective measures had already been taken by 
the agency involved and no further action w-as warranted. 

Sheriff's Office, Northumberland Count}-, vSunbury, Pa. 

Police Department, Brook Park, Ohio 

Police Department, Westport, Wash. 

Police Department, Hobbs, N. Mex. 

Sheriff's Office, Bernahllo County, Albuquerque, N. Mex. 

Police Department, Rock Creek, Ohio 

Mr. Edwards. And also, I think the committee w^ould find valuable 
a copy of these agreements wdth the States and the instructions that 
you send to the banks, savings and loan institutions and others with 
regard to the restrictions that you are putting on these arrest records. 

(The following information was furnished to the subcommittee :) 

The FBI has no written agreements with the states and with banks and savings 
and loan institutions under which fingerprints and information in the manual 
sj'stem are exchanged. Such exchange is currently authorized under provisions 
of Section 902 of Public Law 92-184. 

Mr. Ponder. The restrictions, Mr. Chairman, appear on the 
records themselves that we send out. It has a caveat on the record 
itself which reads that, "This record is furnished for official use only." 
That is on every record that is disseminated. 

Mr. Edwards. Well, the committee will also be interested to see 
if you have canceled out a record of cancellation of these private 
contractors wdio are getting information. 

Incidentally, District of Columbia makes them pay a fee. Do you 
require that these private industries pay a fee for this very valuable 
information which shortcuts the investigation that they are going 
to have to make with regard to the employment? If they get a rap 
sheet with 10 arrests on it, they are certainly not going to conduct a 
responsible investigation of the background of the individual. They 
are just not going to hire him, as you can imagine. 

Mr. Ponder. Mr. Chairman, we do not service private companies 
or organizations or individuals and we never have. 

Mr. Edwards. Then why am I getting letters from banks and sav- 
ings and loans saying now they are getting criminal arrest records 
and they think they won't be able to under my bill? 



74 

Mr. Ponder. Sir, other than authorized by the Congress. We do 
not service other than the official agencies, such as banking institu- 
tions which are specificalh" autliorized. I am making a (Hstinction 
between a private business Hke a banking institution and General 
Motors, for exami)le. 

Mr. Edwards. What about a Defense contract with Lockheed? 

Mr. Ponder. If they require a record check, then the}" have to 
submit their cards through the De])artment of Defense. We do not 
service Lockheed or Boeing or whomever it may be. It would be the 
agency responsible for that contract. 

Mr. Edwards. We had testimony to the effect that in many of the 
cities of the United States private employers through their local 
pohce departments get rap sheets from the FBI. 

Mr. Santarelli. That sounds like improper conduct as far as j^ou 
are concerned, is it not? 

Mr. Ponder. It certainly would be. 

Mr. Edwards. The court of appeals in Menard found significant 
abuses in this dissemination of rap sheets. Are you saying you think 
the court was wrong? 

Mr. Santarelli. Not necessarily. There may be abuses that are not 
known to us. That is very possible. 

Mr. Velde. Also, Mr. Chairman, section 5 of the administration 
bill proposes a broad range of criminal and civil remedies for misuse 
or authorized disclosure of criminal history information or intelligence 
information as well. 

So we are seeking additional sanctions to impose in these situations. 

Mr. Edwards. Mr. Wiggins. 

Mr. Wiggins. Thank you, Mr. Chairman. 

Mr. Chairman, I want to say at least a word of greeting to our 
distinguished witnesses, Mr. SantarelU, Mr. Velde, and Mr. Ponder. 
In the case of Mr. Santarelli and Mr. Velde, they are both known to 
us. Mr. Santarelli having served on our own committee and Mr. 
Velde having served on the Senate side. Their testimony this morning 
indicates their training up here was equally excellent. We welcome 
you back. 

I should like to know more definitively who has access to FBI 
information, criminal arrest information. 

Mr. Ponder. At the i)resent time, law enforcement agencies, 
governmental agencies, including Federal and State and agencies 
that are authorized by authority of the Attorney General's instructions. 

For example, Mr. Santarelli has outlined that if there is a State 
law that requires fingerprinting, and the Attorney' General agrees 
with that i)articular State law, then we will i)rocess i)rints from that 
particular agency and return a check of our files. The military, which 
is a part, of coiu'se, of the Government establishment, has access, as 
well as the other agencies of the Federal Government. 

Mr. Santarelli. Before we move any further on that, I would 
like to clarif}- a point that the chairman raised and which is also 
implicit in Mr. Wiggins' question, and that is the role of the Attorney 
General in this decisionmaking process of discretionary or executive 
function over determining whether or not to comply with the State 
statute requesting or using this information. 

We would propose under the administration's bill, which s])ecifically 
authorizes the Attorney General to make these decisions, the draft- 
ing of regulations for the application of that kind of decisionmaking 



/o 

power. It would not be done wholly on a discretionary basis. It would 
be subject to draft of regulations which would be published and 
available to the CongTess and anyone else. 

Mr. Wiggins. With respect to State or federally chartered banking 
institutions, does the Attorney General have any discretionary au- 
thority on the release of information to those agencies, or does the 
Attorney General's discretion only come into jday in dealing with 
State licensing statutes? 

Mr. Santarelli. Under existing practice I couldn't answer that 
question. 

Do you know, Mr. Ponder? 

^h. PoxDER. Yes, we assumed under 534 that we had authority 
to do this ever since the division was established. However, during 
the Menard case, the question arose, did the Attorney General have 
authority to disseminate records to banking institutions. 

The court held that they felt the Dej^artment did not have that 
authority. The authority was reestablished last fall, l)y [public law 
and we are continuing to do this service for the banking institutions 
at the preesent time. 

Mr. Edwards. Just a moment. That v.as Api)ropriation Committee 
legislation. Wouldn't you agree that it would more i)roperly have 
been subject to authonzation by the Judiciary Committee rather 
than the A})])roi)riations Committee? 

Mr. Santarelli. It is more desirable to have a ])ermanent statute 
than to deal annually on ai)proi)riation statute to authorize that kind 
of conduct, yes. 

\h\ Edwards. What I am saying is the Approjmations Committee 
is supposed to ai)i)ropriate money and not suj^posed to legislate, and 
I imagine that would have been subject to a jioint of order if Mr. 
Wiggins or I had noticed it. 

Mr. Wiggins. Nonetheless, it is the law-of-the-land and as I read 
that section 902 of Public Law 92-184 the Attorney General has no 
discretion to deny to a banking institution, federalh' chartered or 
State insurance institution, criminal arrest information, and the 
Attorney General's discretion, onh' comes into pla}' with re-pect to 
the State licensing statutes. 

I gather your testimony is that you would })erhaps extend the 
authority of the Attorney General to exercise discretion with respect 
to the banks as well as the licensing statutes? 

\[r. Santarelli. That language is provided for in the administra- 
tion's bill that we have talked about this morning to disseminate that 
kind of information and w^e also may be proposing a separate statute 
in that respect to clarif}^ that, because we too share the Congress- 
man's concern that an appro])riations statute is not the best place to 
obtain authorization for that kind of conduct. 

Mr. W^iggins. With respect to the precise question of who has ac- 
cess to v^our criminal arrest records, I understand your response to be 
that only official agencies do, wdth the exception of banking institu- 
tions. Is that a general and fair statement of your testimony? 

Mr. Ponder. Plus, an}' agency of a State in which fingerprinting is 
required at State level and sanctioned by the Attorney General. 

3klr. Wiggins. Yes, I intended to include that. In other words, there 
is no dissemination under existing law or ]:)ractice to any ])rivate em- 
plo^'er who seeks information from you for the purpose of making a 
judgment as to a prospective employee or existing employee? 

7S-242 — 72 6 



76 

Mr. Ponder. That is correct. 

Mr. Wiggins. You have testified that the milUons of arrest records 
in your files must be checked manually. Is there some deficiency in 
the state-of-the-art for this not to be a mechanical function rather 
than a manual function? Is there some reason it has to be checked 
manually? 

Mr. Ponder. At this moment we are very enthusiastic that we are 
going to have an automated identification device. We have been re- 
searching this subject for about 5 years. We expect delivery this sum- 
mer, perhaps by September, or later than September, of a prototype 
piece of equipment which will assist us in processing the fingerprint 
cards we receive through a computer. 

We also are going to automate other aspects of the ojjeration. For 
example, the name search operation, which is now done manually. We 
know this can be done by computer in much the same way indexing 
at NCIC is done. Up to this point, it has not been feasible to auto- 
mate the searching of finger])rints. It has been a tough assignment. 

As I said, research has been going on for more than 5 3^ears. 

Mr. Wiggins. How far away are we from this automated system? 

Mr. Ponder. In certain aspects of our division we will begin auto- 
mating this next fiscal year, beginning July 1. We will not know how 
fast we can proceed with the automatic scanner until we have fur- 
ther experiments after it is delivered on board, perhaps b}^ September. 

Mr. Wiggins. Are your arrest records interfaced in any way with 
court records either at the Federal or State level, or interfaced with 
prosecutor's records, district attorneys and the like? 

Mr. Ponder. Our record would only contain the disposition to the 
arrest if the disposition is submitted to us. 

Mr. Wiggins. By the arresting agency? 

Mr. Ponder. Yes, or the court. 

Mr. Wiggins. Well, now, is it an automatic procedure for the 
courts to report dispositions to you so that your records are u[) to 
date? 

Mr. Ponder. I have to admit that it is not. We constantly urge 
contributors, whether it is an arresting agency or the court, to follow- 
up with the disposition. 

Mr. Wiggins. Ai"e you interfaced with the Federal court system? 

Mr. Ponder. Yes, we are getting dispositions from the Federal 
agencies. 

Mr. Wiggins. Is that mandated by law? 

Mr. Ponder. No. 

Mr. Wiggins. Are you getting the cooperation that you think you 
are entitled to from all the courts in this regard? 

Mr. Ponder. Not from the courts, but from the agencies them- 
selves, for example, the Treasury Department, or Post Office Dei)art- 
ment. The FBI is responsible for following each case until the dis- 
position is obtained and it is added on to the docket. 

Mr. Santarelli. LEAA has been encouraging some of this at the 
State level, Mr. Wiggins. Mr. Velde can explain that to you. 

Mr. Velde. Yes, sir; the development of the search system, now 
the computerized criminal history system in our supi)ort of develo])- 
ment of companion State and local systems has been to automate the 
complete criminal history process, that is, including the entries from 
prosecutors, from courts, from correction agencies, parole, and the like. 



77 

So this is a very significant development going on nationwide to 
automate the process at the State and local level. 

It is an expensive process and it will take time. I would say we are 
at least 5 to 7 years away from an automated comprehensive system 
in all of the States. In 15 of the largest States which comprise about 
80 percent of the Nation's criminal transactions, we are perhaps 1% or 
2 years away from a large degree of automation in the processing of 
their criminal history information. 

But in 25, half of the smaller States, we are just not embarking 
on a program to build up a State identification function, manual or 
automated, because those States do not presently have them. 

Mr. Wiggins. I can understand some problems about getting the 
dispositions back to you for inclusion in your records, particularly 
from States, but I would like to question you now about how that 
l)rogram works ^\dth Federal agencies. 

Let's assume a Treasury arrest, and let's assume that the arrest 
results in the commencement of a criminal prosecution for tax evasion, 
for example. No\\', if an inquiry is made from a ])roper agency con- 
cerning the individual arrested, do you simply report that data which 
is on your card or do 3'ou affirmatively follow up with the prosecuting 
agency to find out the status of that prosecution? 

Mr. Ponder. We do not follow up. We depend on the agency to 
follow up and submit the disposition. 

Mr. Wiggins. Give me a typical illustration of the i)erformance 
of that agency in providing you the follow up information. Do they 
tell you, for example, at the time of the indictment that an indict- 
ment has resulted? 

Mr. Ponder. We ask simply for the final disposition and often- 
times the final disposition will be released. We do not normally get 
interim dispositions, such as indicated, to be tried 6 months later, 
or whatever the case may be. 

Mr. Wiggins. Then, as I understand you, your information would 
be the fact of arrest, and the ultimate disposition of dismissal, guilty 
or not guilty? 

Mr. Ponder. Correct. 

Mr. Wiggins. And any inquiring agency would be very much in 
the dark as to what happened during that timelag between arrest 
and ultimate disposition, in terms of your records? 

Mr. Ponder. That is correct. 

Mr. Wiggins. Is it feasible in your mind to have interim progress 
reports submitted from Federal agencies? 

Mr. Ponder. Well, this is proposed under the computerized criminal 
histoiy program that Mr. Velde spoke of, to have the entire record 
augmented throughout the various steps of the criminal justice 
system. The fact that he was on parole or the fact that he w as released, 
the fact that he was reindicted, ^^hatever steps may have incurred 
would be entered into the computerized criminal history record. 

Mr. Wiggins. The legislation before, us, Mr. Santarelli, has sev^eral 
classification problems and one of them troubles me a little bit. 
The legislation i)roposes that criminal arrest information may not 
be disseminated or even maintained except as ]:)rovitled in tlie act, 
unless the man has suffered a pre\'ious conviction of felony, in which 
event all bets are off. 

Would vou comment on the rationalitv of that distinction? 



78 

Mr. Santarelli. T am not able to. It a])pears to be arbitrary. 
Unfortunately, many times we have to be arbitrary in tlecisionmakin;^; 
for one reason or another, but I don't know what rationale ])re- 
supposes that and I would be interested in an explanation of it from 
its authors. 

]Mr. Wiggins. I think our record ought to contain such a rationale, 
and it should not be left to the surmise of some court, ]ierha])s, 
which has to make that decision. 

The bill before us pro\ades that records may not even be maintained 
after a certain })eriod of time, with exceptions. Would you comment, 
please, upon the impact that might have on law enforcement agencies. 

Mr. Santarelli. I think it is quite obvious that presupposed in 
this whole discussion and in everybody's mind is that the fact of an 
arrest is of some value to society. It is a true and accurate record of an 
event and it may or may not be probative as to the conduct of an 
individual in trying to evaluate him for some specific purpose. 

If it has any value initialh^, it continues to have some value sub- 
sec^uently. It then becomes a question of rational judgment of men as 
to when it continues to have 51 percent detrimental effect and 49 
percent value. 

I am not sure I woidd be able to draw that distinction any better 
than you would. I do think that in common sense 2 years is not a 
rationale juncture at which to say it no longer continues to have merit. 
Ten 3'ears might be near the mark. Five years we might begin to dis- 
cuss. But certainly 2 years is a very short period of time in which to 
say for the simple expiration of time the fact of an arrest no longer 
has sufficient probative value to be recognized or has such detrimental 
effect as to be expunged. 

Mr. Wiggins. I would like to switch now, Mr. Chairman. 

In the statute which has just been enacted, the Attornev General 
is given discretion with respect to dissemination to State agencies for 
licensing purposes. In the proi)osal of the Administration, that same 
discretion is carried over and i)erha])s it is even greater. 

Well, I admire the proi)er deference of the Federal Government to 
State statutes and the position taken by the i)roiiosal of the Federal 
Administration that if a State in the exercise of its policy should deem 
it desirable to learn about criminal information that we should not 
frustrate that. 

Now, having announced that great principle, you undercut it bA 
saying "unless the Attorney General thinks otherwise." 

Why not defer to the States on the matter of the use, ])articularly 
of their own information? Because as you know, the proposal covers 
law enforcement agencies at the State level, too. 

Mr. Santarelli. In an intellectual atmos])here or academic setting 
I would agree with you 100 percent, Mr. Wiggins. It is intellectually 
pure and consistent to adhere to the j)hilosophy of federalism which 
saj's the State shall have the ultimate authority to do that which in the 
exercise of its function as a governing agent it should do, as long as it 
is not in violation of the constitution. 

We have learned the hard and bitter lesson of reality which conflicts 
with the niceties of intellectual purity and that is at times men will 
be arbitrary and capricious in the name of the law and thus the insti- 
tution of the Government. That has caused us to temper the intel- 
lectual purity of the notion of absolute integrity in the State decision- 



79 

making, and we therefore, as men, tr\' to supplement the wisdom and 
judgment of the State by saying in some cases it may be that the 
State processes are perverted in their performance of tlieir duties 
and do things which are unreasonable or undesirable, and that we 
would not assist them in performing that undesirable function by 
continuing the flow of the Federal end of the assistance. 

Although we do not step in, in an afhrmative way and frustrate 
that i)erformance with an affirmative kind of action, we sa}' that we 
would not comply \\-ith the Federal end of assistance by proxdding 
that information to them if it is going to be used in a case where we 
don't deem it tlesirable. 

Mr. Wiggins. Do I understand you to say that if there is disagree- 
ment by the Attorney General and a State legislature, that you 
would conceivably cut off all LEAA assistance to all of the law enforce- 
ment agencies in that State because of their unwillingness to accept 
the advice of the Attorney General? 

Mr. Saxtarelli. No, I don't think it has that blanket effect at all. 
It would be selective. It would be that the Attorney General would 
not authorize the dissemination of that particular information for 
that particular purpose and not the cutting off of all LEAA support 
of all State criminal justice activity. 

Mr. Wiggins. We are talking about dissemination by a State law 
enforcement agency which is l■ecei^'ing funds in part from LEAA. 
That is included in both proposals. And we are talking about a local 
police department which wishes to comply with the recjuest from a 
State official, acting pursuant to a State law, to give him information. 

The Attorney General disagrees because he doesn't think that 
criminal arrest record wdth respect to barbers has any relevancy. It 
is really a question of who is smarter, the Attorney General or the 
State legislature in that regard, and who knows best what is good for 
the State of "X". 

Let's suppose they felt strongly about it and simply said, "We are 
going to listen to our State legislature rather than the Attorne}' 
General." Wliat are you going to do about it? 

Mr. Santarelli. I would hope that we would intelligentlv enter 
into a length}' negotiation with that State and attempt to resolve 
that kind of impasse. I would be unwilling to predict what the kind 
of result would be to that l\vpothetical incident. I would hope that 
negotiations could provide a way in which to deal ^vith that problem. 

^h\ Wiggins. We only get into that bind, Mr. Santarelli, because we 
here in Washington are so secure in oiu' knowledge that we know more 
about running the State of ''X" than the elected officials of the 
State of ''X". That is pretty unfortunate, and I rather liked your 
pure intellectual approach better than the practical one you described. 

Mr. Velde. It is probable that administrative machinery would be 
required to be set up to administer this provision and some sort of 
screening and review process to determine the applicability of the 
section, and I would assume that there would be administrative 
procedures, including appeal, that would be available if a particular 
law enforcement agencv or a State or Avhatever the case mav be, 
felt that a decision b}^ the Attorney General would be in its adverse 
interest. 

Mr. Wiggins. Well, I won't pursue this further, now. 

Mr. Edwards. Will you 3-ield at that moment. It is an interesting 
line of questioning. 



80 

Mr. Wiggins. Sure. 

Mr. Edwards. After all, it is Federal records that the States are 
getting for nothing. 

Mr. Wiggins. I am talking about records maintained by local 
police departments of their own arrests, but those local police depart- 
ments are law enforcement agencies as defined in the act because 
they receive LEA A funds. 

You are saying they cannot disseminate their own records except 
as we specify. 

Mr. Santarelli. That is not entirely accurate. I believe that 
possibility could obtain under the bill we are talking about today 
where there is an attempt to reach the State records. 

Our api)roach to it is that we would not want to attempt to frustrate 
the use of the State in disseminating within the State its own records 
and the manner in which it keeps them. 

Mr. Wiggins. Except where the Attorney General disagrees. 

Mr. Santarelli. No, except where he would prohibit the use of the 
federally kept information in returning to that State. 

Mr. Wiggins. That is an important distinction I had not gleaned 
from your proposal. 

Mr. Santarelli. If I was not clear in that regard, excuse me. We 
do not attempt to substitute our judgment for the State judgment 
when it involves State-gathered information. State-kept information 
and State-disseminated information. 

The only imposition of the Attorney General is in allowing the flow 
of federally kept information to go from the Federal repository to the 
State for its use within the State. 

Mr. Wiggins. Well, then, my observations are still germane with 
respect to the proposal before us. 

\lr. Santarelli. That is correct. 

Mr. Wiggins. Because it would prohibit the dissemination of State- 
collected arrest information to a State licensing agency not technically 
a law enforcement agency as defined in the proposal. 

Mr. Edwards. As long as the State agency was receiving Federal 
funds. 

Mr. Wiggins. That is correct. Or the disseminating agency. Not 
just the receiving agency. 

I will yield to Mr. Keating. 

Mr. Edwards. Mr. Keating. 

Mr. Keating. I would just like to add a comment to what Con- 
gressman Wiggins and the chairman were talking about. 

If LEAA would not threaten to cutoff funds, or actually cutoff 
funds, I would say they would probably be better disciplined than 
any other agency of Government I have had experience with, because 
lUA" experience is that it is always the resort to the fund cutoff that is 
the hammer over the heads of the State and local government, though 
I would hope that the discipline that you talk about would be true. 

The temptation is always to threaten the local governments and the 
State governments. 

Mr. Velde. Congressman, if I may react to your observation, there 
are LEAA funds which are not subject to administrative action by the 
Attorney General or the administration of LEAA. Block grant funds 
go to the States on the automatic population basis and the availability 
of LEAA funds or nonavailability, is not a sanction intended to be 
used by the Department under the administration's bill. 



81 

The remedies, of course, include the Federal criminal penalties and 
the civil remedies available to the individual whose privacy may have 
been invaded. But availability or nonavailability of LEAA funding 
is not one of the recourses or remedies available if there has been an 
unauthorized disclosure or misuse of the information. I don't think 
it would be authorized under the LEAA legislation except for perhaps 
discretionary funds on which LEAA administrators could impose 
whatever special conditions the}^ felt necessary and reasonable as a 
condition precedent for the availability of the funds. 

Mr. Keating. We experience daily in our approaches to local govern- 
ment situations in which committee staffs, or Members of the Congress, 
or agencies of the Federal Government, if they can't get information 
they desire, whether they are entitled to it or not, threaten the cutting 
off of funds; this is constant, and it runs deep, and in those areas it 
comes up frequently. 

But let's get back to the subject at hand. It just happens to be a 
sore spot with me, the intimidation that takes place — -and I am not 
accusing you of that for one moment, I hope you understand. It 
occurs daily. 

The history of the restrictions on the dissemination of arrest records 
really goes to the point of emplo3-ment, I think, which is the crux of 
what we are realh^ talking about. Minority groups have felt, and many 
people in a lot of employment areas feel, they have been deprived of 
the opportunity even to get in the door because of the availability of 
arrest records in private employment and other areas, and also because 
of the application sheets that they must fill out which ask, "Have you 
ever been arrested or have 3^ou ever been arrested and convicted of an 
offense," felon}^, misdemeanor, and what have you. 

I think that is what the bill is trying to accomplish, to provide 
opportunity in employment primarily within the lower economic areas 
and minorities. 

Now, I don't believe that it is inconsistent or mutually exclusive 
to have proper arrest records and conviction records and still to 
maintain the opportunity for people to be properly employ eel. And 
with that, I would like to get into the subject of the bill at hand. 

Yesterday, I was concerned about the 2-year limitation and raised 
the question then whether the practical effect might be to impose a 
statute of limitation upon a particular criminal offense, of the arrest 
record without a prosecution. 

If my cjuestion is clear, could you comment on that? In other words, 
under this bill you couldn't even maintain an arrest record for dis- 
semination purposes beyond the initial jurisdiction where the offense 
occurred, so that when a corresponding area or law enforcement 
agency in another section of the country would pick up an individual 
for some conduct and check back to other different localities to find 
out if there is any record, the arresting police department could not 
disseminate an arrest of 2 years previously. If they couldn't pass that 
information on, and if the inquiring agency has in custody the person 
who may have been guilty of that crime, prosecution is effectively 
prevented. 

I may have made that too cumbersome, but, Mr. Santarelli, would 
3^ou like to comment on it? 

Mr. Santarelli. If you are talking about recidivist type statutes 
where the conviction for the offense depends on their having been 
previously arrested or something like that 



82 

Mr. Keating. No, let's assume for the moment that out in Cali- 
fornia, Charles Wio'gins commits a crime and there is an arrest record, 
but he leaves the jurisdiction and there is no pending action; he has 
never been convicted of a felom', and he moves into Washington, D.C., 
and is arrested here for some offense. 

Frequently the law enforcement agency will check other jurisdictions 
to see if he is wanted somewhere else. It may have been that the arrest 
was made and he disappeared and they just don't have it properly 
handled. 

At the present time, after he stands trial for the offense here, he 
may be returned to that jurisdiction. 

Mr. Santarelli. If the}" want him. 

Mr. Keating. If they want him. Now, apparentl.y the people there 
want this particular fellow, because they keep sending him back 
here. [Laughter.] 

Mr. Wiggins. I think that is a non sequitur. I would think the}^ 
sent me away. [Laughter.] 

Mr. Keating. In any event, I am wondering if the limitation of 2 
years is so short a time as to be unreasonable, if he could never really 
be effectively tried for that previous arrest if they want to try him? 

Mr. Santarelli. That may be one example of why that is an un- 
reasonable period of time. More persuasive to me is the fact that that 
evitlence of prior arrest may be i)robative across a far broatler spectrum 
of the need to kno\\' information, whether it be emi)loyment in a 
sensitive defense industry situation, whether it be a government i)osi- 
tion in the State of California, or whatever. 

Mr. Keating. Are you indicating that in a morals crime, for 
exam|)le, if you know of a prior arrest and you had somebody in this 
community of whom you were suspicious, it might heli:> the investiga- 
tive ])rocedure in the api)rehension of the ])erson to know his proj^ien- 
sities, or at least his indicated propensities? 

Mr. Santarelli. It certainly woidd be a suggestion to the law en- 
forcement officials of where to look in terms of an investigation for an 
offense. Very often the simi)le fact of law enforcement after commission 
of a crime is that they don't know where to look and that kind of in- 
formation can be probative in that regard. 

It also is dangerous, too, if misused, and we are ver}" cognizant of 
that. 

Mr. Keating. Well, I am sure that is right, because if a ])erson is 
brouglit in for interrogation an([ it becomes public knowledge, i)eoi)le 
have the imjjression he is guilty. At the same time, it it heli)s solve the 
])roblem — and we are trying to reduce the crime rate in this countr}- 
and in this area — is it a valuable tool in the investigative process in the 
ap])rehension of criminals? 

Air. Santarelli. Yes, it is. 

Mr. Edwards. If you A\'ill yield, they are going to furnish us with 
any information they have concerning the extent to which rap sheets 
are valuable in the enforcement of the \a\v. This is a subject on which 
we have no testimony. 

Mr. Keating. I think you almost need somebod}- who works in the 
dei)artment and has gone through the ])rocess of using arrest records 
in trying to solve crimes. 

Mr. Santarelli. Perhajis Mr. Ponder can give us some examples 
of that from his own knowledge and experience. 



83 

Mr. Ponder. I think the best testimon}' as to the vahie of these 
records is the fact that the law enforcement agencies tlii-oughoiit the 
United States submit to us on a vohnitaiy basis some 14,000 arrest 
cards a da}-. 

Now, there are some communities that do not submit fingerprints 
to us. Thej^ are usuall}' in a small and isolated area. But the mere 
fact that the police department takes the time to record these finger- 
l^rints, many times not in accordance with the vState statute, but be- 
cause of custom or investigative technic[ue, would be, I think, a 
monument to the value of the records that we have. 

Now, last 3'ear, for example, we made over 2} o million identifications 
of these records with i)rior records. ]More than 42,000 fugitives were 
identified through receipt and processing of fingerprints from these law 
enforcement agencies. I think that alone tells us something about the 
value of these records. 

Mr. Keating. My suspicion is that many jurisdictions do not 
follow that up voluntarily by telling you the final disposition of the 
case, the conviction and sentence imposed and so on. 

Mr. Ponder. That is correct. 

Mr. Keating. It is probabl}' improving, but it is probably most 
inadequate at this time. 

Mr. Santarelli. It is more than a suspicion, Mr. Keating. 

Mr. Keating. This would then, in my mind, be an argument 
against this bill, because you would have many arrest records where 
there may have been a conviction, and yet the central authority, 
yourself, would not know of this unless you went back to check what 
dis])ositions there were, which I understand you do not do. 

Air. Ponder. No, sir. 

Mr. Santarelli. What really is at issue is how to make the record 
more relia,ble and accurate. The cpiestion is, I guess for Mr. Ed^^ arcls 
in suggesting his bill, is the burden best ])laced on the FBI to affirma- 
tively go out and seek ui)dating data or is the burden best i)laced on 
the submitting agency who voluntarily submitted the information 
to begin with, but does not follow up with subsequent information. 

If we could devise a preceptive method to have the submitting 
agency follow up with additional and corrective information, that 
would be in our judgment the most desirable ajiproach. rather than 
impose the burden on the Federal Government to go searching and 
reaching. That is what Mr. Velde is describing to us as to what is 
hai:)pening in the other sj'stem being developed where the reciuh-e- 
ment is that the agency submit all of the subsequent relevant data. 

Mr. Edwards. Sir. Keating, since he addressed that to me, may 
I briefly say that is not cjuite my point. My point — and I will say I 
think most of our witnesses to date, and certainh' former Attorney 
General Katzenbach, agree — is that the information sent by the FBI 
and by police re]5orting agencies in general should not have within 
them very unfair, prejudicial, and possibly inaccurate information. 
This is the situation today and my description applies to the FBI and 
it applies to the local police de])artments. 

The only place we know that it doesn't hapi:)en at the ])resent 
time is the District of Columbia, where em])loyers are furnislied 
conviction records and not"" unsubstantiated, untried arrest records. 

Forgive me, Mr. Keating. 

Mr. Keating. That is all right, but I would submit, Mr. Chan-man, 
that it is possible to accomplish the objectives which 3'ou state and 



84 

still jirotect the dissemination of records which are helpful to the 
various law enforcement agencies in the country. 

I know that I have had the experience of looking at arrest records, 
sometimes two or three pages with maybe one conviction on it— local 
arrest records — and I do think in sentencing an individual it is prej- 
udicial to the individual if he hasn't been convicted in determining 
what type of sentence to impose. 

I am sure it is prejudicial in the tareas of emploj^ment. But I think 
that there might be some indication of overkill here where you can go 
so far in the protection of these records as to more than insure the 
right of employment, and lack of prejudice in the sentencing process, 
but also to hamstring proper investigation by the appropriate law 
enforcement agencies in the cause of justice across the country in 
reducing the crime rate. 

There has to be some balance here in the approach to this problem, 
which I believe can be achieved, but we have to be clear in our ob- 
jective of what we are trying to accomplish and I don't think these 
are exclusive positions; I think the}" can work together. 

Mr. Velde. Mr. Chairman, about 20 States have what we call 
mandatory State-reporting legislation on the books which requires 
criminal justice agencies, police, courts, and corrections, to submit to a 
State agency any update or any entries with respect to an individual 
that becomes a part of that individual's criminal history at the State 
level. 

There is a nationwide trend toward mandatory reporting which 
IjEAA is encouraging through the use of discretionary grant programs. 
This year we have set aside over $12 million of discretionary grants to 
further this and related develoi)ments at the vState level, so that a 
criminal history will be a complete record of that individual's acquaint- 
anceship with the criminal justice system. 

We are quite concerned about it, and I believe it is also the stated 
policy of the Director of the FBI, on many occasions, to encourage 
the States to develop comprehensive criminal justice information and 
reporting systems. 

So we are concerned and we are encouraging the development and 
that is one of the major purposes of the CCH system. In fact, LEAA 
money in sup])ort of the original Project Search was continued so that 
only those States with, mandatoiy reporting legislation would be 
eligible to obtain discretionary funds. 

Mr. Edwards. Ai-e you through, Mr. Keating? 

Mr. Keating. Yes. Thank you, Mr. Chairman. 

Mr. Edwards. All right, we will try to go around again. I want to 
take a moment, Mr. Santarelli, to stud}' 3'our comments on page 13 
in paragraph 2, where you say S. 3106 "Seems to provide the individual 
with statutory authorit}' to obfuscate the truth concerning his criminal 
background," et cetera, I might point out that in the consideration of 
wS. 3246, legislation to protect the })ublic health and safety from narcotic 
depressants, stimulants, and so forth, the Department of Justice 
testified to the opposite eflfect. 

I quote from page 56, second paragraph; "upon the expiration of 
term of probation imposed on any person under this section such 
j)er6on who at the time of offense is younger than 21 years can apply 
to get the conviction expunged, and can't be held guilty of perjury," 
et cetera. 



85 

Mr. Santarelli. Correct. Those are not inconsistent positions. 
Concerning the reference on page 13 here, I don't mean to say ab- 
sohitely everywhere, at all times and places is the denial of arrest 
undesirable. Wliat 3106 says is that in every cases after 2 years, 
willy nilly, the individual may respond in a negative fashion about an 
aiTcst. What was attempted in the omnibus drug bill was a very 
selective, naiTow approach at rehabilitating specifically enumerated 
individuals; namely, youthful first-time drug offenders, based on 
policy judgment made not only by the executive branch, but the 
Congress, that this class of persons is highly susceptible to rehabilita- 
tion through this means; that is, expungement of the record. 

A young man should be given an opportunit}' to make a second go 
of it, or the young person in that category. What I am saying on page 
13 is not inconsistent with that. I am simply sa^nng that to go to this 
length in every case of a record over 2 years of age so that the individual 
may deny the arrest is an unreasonably broad categorization, not even 
a categorization, and is undesirable as a question of public polic}^ in 
denying a factual event with no underlying policy decision such as 
was made in the drug bill of a selected class. 

Mr. Edwards. You are saying someone who has been convicted of 
a crime can deny the crime. But you sa}' that someone who has an 
empty arrest record, no conviction, and is in a position where the 
GoveiTiment agency made no attempt to update the airest record 
and has disseminated it, perhaps unlawfully', we don't know, that he 
has a greater burden than the person who has been convicted of a 
crime. You aj)prove of the convicted person's not telling the truth 
about it or retusin.g to answer the question. 

It is arguable that the cases are that much different, but I really 
don't w^ant to go into that. I think it is a minor point. I wanted to 
bring it up however. 

Now, on page 4, Mr. Santarelli, you refer to the rap sheets and 
25,000 cards per day. Fourteen thousand of them in connection with 
arrests, 11,000 per da}^ go to agencies other than police departments, 
is that correct? 

Mr. Ponder. That is correct. They are comprised of the Civil Serv- 
ice Commission submission on Government employees, aliens, military 
enlistees and inductees and approximately 2,000 from police applicants 
for law enforcement positions or banking institutions in that category. 

Mr. Edwards. We have 11,000 rap sheets going out per day. 

Mr. Ponder. We are speaking of 25,000 submissions i)er day. Very 
few of these people have records that we disseminate. 

Mr. Edwards. I see, you have 11,000 requests per day for a file 
search? 

Mr. Ponder. Correct. 

Mr. Edwards. And then of the 11,000 there is a certain percentage 
you will find a record and send it back. 

Mr. Ponder. About 8 percent. 

Mr. Edwards. That is 880 per day, or something like that. So 880 
per day rap sheets — forgive the term, it is yours and not mine — go out 
to the 50 States. You still have 880 rap sheets going to employers or 
State agencies or whoever it might be. They are going to receive them 
and have arrest records on them and they are going to substitute this 
rap sheet for an investigation. They are just going to reject the aj)i)li- 
cation, when there might be all acquittals somewhere along the line. 



86 

because there is no real obligation on the re]:)orting agency to bring 
the FBI files or other files up to date, isn't that correct? 

Mr. Ponder. Sir, the statistics are a little misleading. There would 
onl}^ be a maximum of 2,000 per da}" that would be going out to the 
States. The rest would be going to the Civil Service Commission which 
only fingerprints after the employee is on board with the Government, 
so I don't see much chance there of disqualifying him at that particu- 
lar point. 

In the military, it is after the young man is inducted in the service 
that his fingeri:»rints are taken. The third category is aliens. So there 
are onh^ about 2,000 that we are speaking of going out across the 
countrv. 

Mr. Edwards. I understand. We talked about the fugitive status, 
and I really think that your objection is not too well founded, \h\ 
Santarelli, wdth regard to someone who is arrested, and who disap- 
pears. His record is going to be kept under this bill. 

Mr. Santarelli. If we are agreed on that, then it is not a problem. 
All I am quarreling with — and I am not quarreling, it is a poor choice 
of words — is the clarifying of the language of pending prosecution. If 
the pending prosecution is interpreted to encompass all cases of 
fugitives, even where there is no filed indictment, then that is fine. 

Mr. Edwards. Mr. Wiggins. 

Mr. Wiggins. I would like ^Nlr. Santarelli to comment on some 
inconsistencies that bother me. We take the case of a man who 
has not been arrested at all, but he is wanted, and it seems to be in 
the jiublic interest to spread that information around as widely as 
possible. We would encourage that his ])icture be on the front page 
of everv newspaper in America. We publish the "10 most wanted 
list" and see that it is in ever}^ post ofRce. We wide^v publicize the 
fact that we would like to arrest the man, but then as soon as we 
arrest him we try to hush it ui) under this legislation. 

Does that bother you? 

Mr. Santarelli. Yes. 

Mr. Wiggins. It seems a bit inconsistent if the jiurpose and motive 
behind this legislation is the protection of the privac}', literally, of a 
person who is merely suspected of a crime, as distinguished from a 
person who has been convicted of a crime. 

Mr. Santarelli. What is bothering us all here is the fact that 
decisionmakers having read the simple fact of an arrest make a bad 
decision on it. 

Mr. Edwards. And don't conduct a resi)onsible investigation. 

Mr. Santarelli. Right, and in order to i)reclude that we are 
going back to denying the information rather than attempting to 
encourage better quality decisonmaking based on fact. 

Mr. Wiggins. And we are also assuming that the decisionmaker 
will reject the explanation of the ver}- man arrested who is before 
him and sa3^s, "I was not convicted of that offense. I was acquitted." 

Mr. Santarelli. Or make his judgment based on having seen the 
single entiy of arrest. If w^e would devote our resources and energy 
to devise a wa^^ to press the decisonmaker in making a more fair 
decision ^\ath further investigation, we would jn'obably be more 
meritorious in our resolution of this problem than simph^ denying 
the fact of arrest. 

Mr. Wiggins. Another matter that is bothering me involves 
principles that come into conflict, and jninciples often do, but on 



the one hand, we hold up as almost sacred that public acts should be 
conducted in public and should be made available to the public, 
and by public acts I mean to include the public act of arrest by an 
ofRciai of the government. Court records, dockets, are public informa- 
tion, and I would take it that a prosecuting agency's records of the 
filing of a complaint, for example, are all public acts which we say 
ougiit to be conducted in public and the public has a right to know 
what their agents are doing. That is on the one hand. 

On the other hand, we say that some pubUc acts, arrest, should not 
be open to public scrutiny because of the possible private harm that 
would result from that. Do you want to try to put the two principles 
on the scales, Mr. Santarelli? 

Mr. Santarelli. I suspect society has been weighing those con- 
flicting interests since the dawn of man and my small cerebrations in 
an attempt to reweigh that scale are hardl}^ perceptive. I, too, share 
your view that I think that is an inconsistent position, ])articularly 
when you take the view that arrest is a public record on the precinct 
arrest book to which any newspai)er reporter or inquiiing citizen can go 
in and look at on any given day on that big fat arrest book on the desk 
and find out who was arrested. 

Mr. Wiggins. You are cpute sure they would be able to do that if 
we i)ass the bill before us? 

^Ir. Santarelli. The bill before us would preclude that kind of 
information. But all over the country and since the dawn of mankind 
the fact of arrest is public information and the newspapers dutifully 
record the blotter each day. I am not sure that the intention of this 
proposed law is to frustrate the kind of first amendment considerations 
that are involved, for example, in newspapers reporting the daily 
list of arrested persons in a given community. Certainly those two 
})rinciples are in clear conflict. 

And at another point in the process of the criminal justice system, 
the arrest becomes a public fact, also. So to say at one point it is 
Ijublic and at another it is not, without treating the whole change 
consistently is inconsistent. 

Mr. Wiggins. If we attempted to narrow the tln-ust of our legisla- 
tion to simply employer information, employer requests, if we focused 
only on that, avoiding all the problems of newspapers' asking for 
information about an arrest wliich occurred yesterday, avoiding the 
problem of intergovernmental exchanges for law enforcement pur- 
poses — would it help the legislation, in your opinion, if we were to 
attempt so to focus it? 

Mr. Santarelli. You certainly could avoid many of the thorny 
other issues which are not easily resolvable if you deal exclusively 
with the question of private employers and their access to it. 

Even that would present you with a number of collateral issues of 
when the employer is private and when he is quasi-public. 

Mr. Edwards. Mr. Keating. 

Mr. Keating. I don't have any other questions, Mr. Chairman. 

Mr. Edwards. Mr. Zeifman. 

Mr. Zeifman. Suppose a person is arrested in a State jurisdiction. 
The record of arrest is sent by the State jurisdiction to the FBI. 
Subsequently there is an arraignment or presentment. The judge at 
that time makes a tletermination with the agreement of the prosecutor 
that the evidence brought out at the arraignment proceedmg is such 



88 

as to indicate that the pohce, although they may have had probable 
cause, had in fact made a good faith mistake, and had in fact arrested 
the wrong man. 

As a result of that arrest, the local judge then exercising his powers 
under the State law, orders the local police to expunge the record of 
that arrest under those circumstances. Do you see any public interest 
served by the FBI not following a policy consistent with the expunge- 
ment order of the local judge? 

Mr. Santaretti. Possibly, but the overwhelming merits of that 
case may very well be that the FBI should follow that polic}'. 

Mr. Zeifman. Would you support the provision in this bill that 
would require, in the case of an arrest record which had been ordered 
expunged by the court that had jurisdiction over the arrest record, 
that under those circumstances, the FBI would be prohibited at 
least from disseminating such an expunged arrest record? 

Mr. Santarelli. I don't think we need to go that far. I think the 
Bureau is willing to comply with that kind of procedure if the procedure 
was instituted in the proper fashion, namely, that the local jurisdiction 
that submitted the original record would be required to submit such 
subsequent entries as may be of probative value or any subsequent 
record, however 3"ou want to phrase it. 

The Bureau would be willing, and voluntarily, to comply with that 
by sending that record back to the local agency and allowmg it to be 
expunged. 

Mr. Zeifman. If that be the case, then what ^\'as the reason for the 
problem in the Menard case? 

Mr. Ponder. With regard to expungement, let me clarif}^ that in 
the case that you cited. We return records every day. Over 9,000 were 
returned last year. If a court orders the record expimged and the 
contributor who committed the print to us lets us know, we send it 
back and the record is automatically expunged from our files. 

Now, in the Menard case, he did not proceed through the contributor 
who submitted the prints to us, which was the Los Angeles, C\ilif., 
police department. He chose to go to the courts in the District of 
Columbia. Had the Los Angeles Police Department requested his prints 
back, we would have returned them, no questions asked. 

Mr. Zeifman. But under our system, isn't it more appropriate for 
the court to make the determination as to whether the record ought 
to be exp\mged rather than the local police department? 

Mr. Santarelli. We don't quarrel with who makes the decision. 
The question is how is that communicated to the Federal Govern- 
ment and the FBI. 

Mr. Zeifman. But to pursue the same fact situation a bit further, 
let's assume now that we are all in agreement with res-pect to a par- 
ticular arrest, that the wrong man was arrested, that the local court 
has in fact ordered the record to be expunged. The local police agree 
that the record should be expunged. Under those circumstances, 
would you still have the provision in the present bill which anouKI 
])ermit the arrested person to not disclose the record of that arrest 
if he were asked the question, "Have you ever been arrested?" 

Mr. wSantarelli. No, because that is similar to the case of the drug 
section, where the court has ordered the expungement of the record, 
following whatever i)rocess that it follows, which is presumably due 
process. That is different from an abritrary cutoff simply by the ex- 



.89 

piration of passage of time wdthout an}^ relation to the merits of the 
case. 

You are talking about a case in which the merits have been judged 
where they should be expunged, and we are not quarreling with that. 

Mr. Zeifman. You are not stating, then, that you regard as a 
blanket jjolicy that the Federal Go\ernment ought not to authorize 
people to make statements which are not c(jrrect? 

Mr. Saxtarelli. As a general policy, the Federal Government 
should not be i^arty to or encourage systems of action whereby truth 
is obfuscated or denied as a general policy. In certain specific cases 
where on a polic}' basis it can be decided that the overwhelming 
merits are that denial of a fact is desirable, then the Federal Govern- 
ment can, mider those circumstances, sanction that kind of conduct. 

It is just a question of what you think the general policy ought to be. 

Mr. Zeifman. When the former Attorney General testified before 
the subcommittee, I believe he stated that during the course of his 
admuiistration he changed the em])loyment ])olicies of the Depart- 
ment of Justice itself, so that perspective applicants for employment 
with the Department of Justice were no longer asked questions con- 
cerning arrest. 

The only questions that Avere asked were with respect to convic- 
tions. Is that still the employment ])olicy of the Department of 
Justice? 

Mr. Santarelli. I do not know the answer to that. 

Mr. Velde. I believe that is a jjolicy that is governmentwide with 
resj^ect to filling out civil serxnce form 171 where there is an entry 
that says, "Have you been j^reviousl}^ convicted of any offense, 
against the law . . . or fined over $30." 

Mr. Zeifman. Do you believe that the ])resent policies of the Fed- 
eral Government with resi)ect to cmi)loyment ai)plications which 
limit the questions concerning arrest to arrest followed by convictions 
have interfered in any way with the problem, of making certain that 
undesirable peojjle are not employed in the De])artment of f|^istice? 

Mr. Santarelli. I have no way of answering that oft' the to]) of 
my head, Mr. Zeifman, without investigating that with the Dej)art- 
ment. It is clear, however, that notwithstanding the general form of 
the a])plication of the Federal Government, intensive investigations 
are conducted of individuals who are hired in the De])artment for 
sensitive positions, such as trial attorney. Everyone is given a thoroiigh 
investigation at which time any record of arrest in any jurisdiction 
would most likely be uncovered and an evaluation made by the hiring 
authority as to the significance of that, including the possibility of 
a discussion with the individual about the significance of it. 

In every case there is an investigation beyond that of the sim])le 
Federal civil service form, that is, in the De])artment of Justice for 
an attorney i)osition. 

Mr. Zeifman. Another aspect of this problem relates to the sub- 
ject of police community relations, and I think in particular with 
respect to the i)roblem of ])olice comnumity relations as far as young 
peo])le are concerned. 

Under the ])resent system, if a person is arrested and not prosecuted 
and convicted, there is a possibility of that i)erson being stigmatized. 
If, by a])])ro])riate legislation, that possibility were removed, do you 
think that the removal of that possibihty v>ould imi)rove the attitudes 



90 

of minority groups and young jieople in particular? Would it facilitate 
more harmonious relationships between minority groui)s and the 
})olice? 

Mr. Santarelli. I am sure we would all like to presuppose the 
answer to that, but that is not so easily answered. I expect in 
general 



Mr. Zeifman. In j^our jH'eparation for your testimony and in the 
formulation of the Department's position, did you confer and consult 
with the Community Relation Service of the Justice De])artment? 

Mr. Santarelli. The preparation of the Department of Justice's 
testimony on any public policy matter is always conducted with an 
ojiportimity for every department, division, and branch of the Depart- 
ment whose interest is concerned to make in])uts. 

In this case, the mechanics of the i)reparation of this testimon}^, 
and to whom there was communication and from whom and to what 
extent are not all known by me. This goes on for a period of months 
anl weeks in which all of the departments, divisions, and branches of 
the De])artment are su]jposed to make a contribution. I can't answer 
that off the top of my head. 

^Ir. Edwards. Incidentally, before I turn to Mr. Garrison, the 
11,000 odd arrests on May Day, are those in the FBI files now and 
are they going to follow the 11,000 people the rest of their lives? 

Mr. Ponder. We have none in our files. We returned them to the 
submitting agency, which was the District of Columbia police 
department in res])onse to a court order. 

Mr. Edwards. Suppose there hadn't been a court order? 

Mr. Ponder. We would have kept them until the District of 
Columbia police requested them back. 

Air. Edwards. If they hadn't gotten the court order, if it had 
been some other jurisdiction, an unsympathetic area, then those 
11,000 arrest records would have stayed A\ith these people the rest 
of their lives. 

Mr. Ponder. There was more than one court order involved. One 
prohibited any dissemination of those while in our files. The basic 
assiunption is that the canl submitted to us would remain there 
until it was removed. 

Mr. Edwards. Doesn't that bother you, Mr. Santarelli. It bothers 
me. 

Mr. Santarelli. Yes, it bothers me. But it also bothers me that 
the Bureau should set itself up as judgment maker in terms of what 
records it will receive and recognize. I think that imposes on it an 
intolerable burden in literally hundreds of thousands of cases of 
records received from law enforcement agencies around the country as 
to what record it will receive and what ones it won't. 

Mr. Edwards. That is what the Department bill provides. As 
you mentioned at the beginning, you are making all kinds of judgments. 

Mr. Santarelli. We are making judgments not with respect to 
what records we will receive from law enforcement agencies, but what 
records we A\ill disseminate back to law enforcement agencies making 
requests other than the requesting agency that submitted the record. 

We take the view that this submission remains the property of 
the submitting agency and that it is entitled to that submission back 
upon request and that we are merely holders of this record and dis- 
seminators of it upon request. 



91 

If 3^ou are asking us to make judgments on the quality of the original 

input 

Mr. Edwards. No, no. We are talking only about dissemination. 
Dissemination is where the damage takes place. Whether or not the 
information is in the files, as long as the files have protection and 
security, it doesn't really make any difference. It is the dissemination 
that we are talking about and I don't think there is really any dis- 
agi-eement with everv^bod}' here that the dissemination needs looking 
into; isn't that correct? 

Mr. Santarelli. That is correct. We are all agreed. 

Mr. Edwards. Mr. Garrison, 

Mr. Garrison. I take it that the Department agrees with the 
policy embodied in title 28 about the withdrawal of services from a 
local agency which does not compl}^ with the regulations. That is, 
there is no dispute about the fact that if a service is going to be 
provided by the Federal Government to local agencies certain strings 
can be attached to that in terms of the standards those agencies meet 
in the use to which they put the data? 

Mr. Santarelli. Yes. 

Mr. Garrison. Now, is it also agreed that it would be reasonable 
not just under LEAA funding provisions, but also under the pro\dsion 
in title 28, to impose standards upon the submitting agencies in terms 
of the form in which the data must be submitted, as a prerequisite to 
their receiving data? 

Mr. Santarelli. That is a technical question, in part. Mr. Ponder? 

Mr. Ponder. I think it would be advantageous to set standards 
governing the disposition. For example, tell an agency, "If you are 
going to submit this card to us, then you must in every instance follow 
^\'ith a complete disposition or any changes or updates in that record." 

I think it would be well to have some type of imposition on the 
contributing agencies. 

Mr. Garrison. Now, do you view the present statute as already 
authorizing the Attorney General to promulgate such regulations or 
would you consider it necessary to pass legislation specifically to 
authorize the Attorney General to impose certain requirements upon 
submitting agencies as a prerequisite to their receiving data? 

Mr. Santarelli. The present statute may permit that. The pro- 
posed statute would make it clearer. 

Mr. Garrison. So I take it that one of the purposes of the ad- 
ministration's bill is to specify the ability of the Attorney General to 
enforce certain types of standards as to the updating of information, 
and so forth? 

Mr. Santarelli. Yes. 

Mr. Garrison. Now, do j^ou distinguish in the administration bill 
between law enforcement agencies and purposes on the one hand, and 
private agencies and purposes on the other, because of the view that 
it isn't a proper governmental function to perform a service of supply- 
ing data to private agencies — that this is simply not something that 
the taxpayers should underwrite — or do you base your distinction 
between law enforcement agencies and purposes on the one hand, 
and private agencies and purposes on the other hand, on some judg- 
ment as to the likelihood of abuse? 

Mr. Santarelli. The two are not exclusive. 

78-242—72 7 



92 

Mr. Velde. Also, consideration of protection of privacy which may 
or may not be related to abuse, just the desire to protect the privacy 
of an individual who is the subject of a criminal history record. 

Mr. Santarelli. In other words, both considerations and others 
go into making that kind of decision. 

Mr. Garrison, The probative value of arrest data, whatever it 
might be in an individual case, may very well be the same, whether 
it is a law enforcement agency viewing the data or a private employer 
viewing the data. 

Isn't the real nub of the problem how much evaluation goes into 
the data? 

Mr, Santarelli. And what are the legitimate public purposes 
involved in assisting private industry. That is a very fair question. 
It is clear that the public purposes are involved in a public institu- 
tion, State government, local government. It is not clear that the 
public interest is involved in the security of a pen manufacturer's 
bookkeeper in Las Vegas. 

Mr. Garrison. On the other hand, though, if in fact you were 
satisfied that putting into the hands of a private employer the infor- 
mation that Joe Doe was arrested on a particular occasion would 
merely be the beginning point, and not the ending point, of evalua- 
tion as to that data, couldn't you justify giving that data to the priv- 
ate institution for a fee, say, simply on the basis that the data is 
there? So long as you are not concerned about the data's being mis- 
used by private agencies, there is no reason to withhold that data 
from them, is there? 

That apparently is the assumption which operates today in most 
instances. Most local police departments apparently take that view. 
They have the information, so why not share it? 

My question really gets do\vn to this: isn't it really valid to ask 
"why not share it," if you are not concerned about the danger of 
unevaluation? 

Mr. Santarelli. Well, that certainly is a valid question, but it is 
a very weight}^ policy and one that we are not prepared to answer this 
morning in any definitive way. 

Whether or not the Government, if the reliability of the investiga- 
tion by a private industry were assumed, whether the Federal Gov- 
ernment should be in the business of serving private industry on a 
fee basis with this kind of information is a question I can't answer 
this morning. 

Mr. Garrison. It seems implicit in much of the testimony that we 
have heard before today that manj^ witnesses do assume that arrest 
data in the hands of police agencies is going to be evaluated before 
being put to use, whereas arrest data in the hands of private industry 
wi\] not be. 

The rationale that seems to come across from the views stated by 
most \vitnesses is that there is presumptively going to be an investi- 
gation of the underlying facts concerning that arrest in the case of 
use in police operations, but presumptively there ^vill not be such an 
investigation of the underlying facts, no evaluation of the data, in 
private hands. 

I wonder if you have any studies or any knowledge about the 
validity of that premise? 

Mr. Velde. Mr. Garrison, I would comment. To directly respond to 
your question, I don't know of any studies, but we can certainly 



93 

check to see if there are. I would hke also to respond to your comment 
with respect to poHce practices on dissemination of criminal histories 
to private employers. 

I believe that the indiscriminate dissemination to anyone who would 
ask for an individual's criminal history would be a rare exception 
rather than the rule as far as State practices are concerned. I ^^'ill cite 
the example to you of the State law of the State of New York which 
very narrowly defines the industries to which criminal histories can 
be made available for employment piu"poses, and I believe they in- 
clude gambling, the security industry, and commercial banking. 
Those are the only three instances in which the State of New York 
disseminates criminal histories to other than governmental agencies, 
and similar practices are followed in most States. 

The State of Texas is a State where criminal histories can be made 
available to inquiring agencies upon the payment of a fee for credit 
checks, but that is an exception to the rule and the practice in most 
States. Perhaps Mr. Ponder might also have a comment on that, 
but I believe that is the case. 

Mr. Ponder. I share the same views. I don't have anymore sta- 
tistics, but I know what you have said is applicable in New York be- 
cause I just saw it a couple of days ago. 

Mr. Garrison. Don't you think it would be beneficial to the law 
enforcement agencies of the country themselves, if all submitting 
agencies were required to submit data of certain specified nature 
along with, or after, the mere fact of arrest, so that we could focus 
perhaps more this question of probative value than on the mere exist- 
ence of the record? 

For example, doesn't the probative value of a particular arrest in 
which a conviction did not result turn on the reason for the nolle 
pros, the reason why a conviction didn't result? 

Mr. Ponder. Yes. 

Mr. Garrison. Wouldn't it be feasible to work out some schedule 
of categories of classifications into which the submitting agencies 
would be required to pigeonhole the data on dispositions they submit, 
given that every pigeonhole is by its nature somewhat arbitrary? 

Mr. Santarelli. That is what Mr. Velde described to us as being 
our present policy and program and is underway. 

Mr. Garrison. But that is with respect to LEAA grants, isn't it? 

Mr. Velde. That is correct. 

Mr. Garrison. I mean even in connection with title 28, the section 
pertaining to the dissemination of this information by the FBI, 
whether or not it has anything to do with LEAA. I suppose the over- 
lap would be tremendous, since most agencies are LEAA assisted, but 
any agency which wants to get data, wants to utilize the FBI services, 
would be required to meet those same criteria of a general nature 
such as you referred to in connection with LEAA grants. 

Thank you. 

Mr. Edwards. I would like to refer to page 147, chapter 8, of the 
"Closed Door" by Professor Miller, prepared for the Manpower 
Administration, U.S. Department of Labor, under a research contract. 
It says here in paragraph three, "that chapter 7 revealed that juvenile 
arrest records are frequently made available to individuals, private 
employers, and Government agencies despite, in some cases, the 
existence of State statutes which clearly prohibit such use. 

Has it been considered with relationship to your testimony? 



94 

Mr. Santarelli. That report was delivered to my office this week 
by Mr. Miller personally in an effort, I am sure, to be able to say it 
was put in my hands before I testified. It was not digested by me or 
read by me in time for this hearing. 

Mr. Edwards. I think the committee would be interested in your 
observation on the report. 

(The following information was submitted to the subcommittee.) 

Mat 23, 1972. 
Hon. Don Edwards, 

Chairman, Subcommittee No. 4, Committee on the Judiciary, 
House of Representatives, Washington, D.C. 

Dear Mr. Chairman: This is in further response to your letter to me of April 
12th. Set forth below are the views of the Department of Justice on "The Closed 
Door" by Professor Herbert S. Miller. 

"The Closed Door" is a report of the results of a study conducted by the Insti- 
tute of Criminal Law and Procedure, Georgetown University Law Center, Wash- 
ington, D.C, concerning the hiring practices, job application and civil service 
regulations of the various states and selected counties and cities and the effect an 
arrest record has upon a person's emploj'ment opportunity with such govern- 
mental bodies. The report concludes that any arrest record is a substantial 
obstacle to employment; that pardons, annulment and expunging statutes are 
not effective in removing this obstacle; and that special provisions relating to the 
confidentiality of former juvenile arrest records are ineffective. The general 
recommendation is that Federal action is needed to prohibit any employer from 
asking about arrest records on job application forms and to prohibit law enforce- 
ment agencies from divulging arrest records which are not followed bj^ conviction 
if the request for such a record is in connection with an application for employment, 
license, bonding or any civil right or privilege. 

In general, we believe that the report well sets forth the very real problems 
created by the dissemination and use of criminal records. Unfortunately, however, 
little or no effort has been expended to deal with the public need for the use of 
these records and, consequently, we cannot support the bulk of the recommenda- 
tions contained therein. 

There is no question that an arrest record and/or conviction record can adversely 
affect a job applicant. There is little doubt that criminal records are probably 
given too much weight by many personnel people in evaluating job applicants. 
Nor can the value of a decent job be minimized as a rehabilitative tool. These 
facts, however, cannot be viewed in a vacuum. It is also true that conviction of 
certain crimes is some indication that the person committing them may repeat 
his illegal conduct. It is also clear that, in many cases, the existence of an arrest 
or series of arrests, even if not followed by convictions, is some indication that an 
individual may have been involved in crime and, therefore, can be a substantial 
emplo.vment risk. 

The integrity of, and public trust in, many public and some private industries 
depends on an honest and etliical labor force. In some cases, the nation's security 
is also at stake. It is, therefore, entirely appropriate that many emplo.yers seek 
and receive information concerning an applicant's prior history, particularly as it 
may relate to his involvement in the criminal justice system. 

Because the need to protect the integrity and public confidence in public and 
quasi-public industries sometimes conflicts with the interests of persons with 
criminal records, it is inappropriate to suggest the abolition of certain criminal 
record maintenance or dissemination practices. It is more appropriate, we believe 
to consider a particular dissemination practice as it relates to particular agencies 
and industries. This is the basic position we have advocated with respect to 
criminal record information. Tiiis approach, together with coordinated efforts 
outside the field of record maintenance and dissemination, e.g., governmental 
bonding programs for ex-convicts, can help solve many of the problems mentioned 
in the report without impairing the ability of employers to maintain the public 
trust in their agencies and industries. 

In addition to the above view, we offer the following comments on particular 
suggestions in the report: 

(a) We agree with the suggestion that all job application forms should clearly 
indicate that a criminal record does not automatically disqualify- an applicant for 
a job; 



95 

(b) While we generally agree with the purposes of the Model Juvenile Records 
statute, we believe its prohibitions are unduly sweeping. The use of juvenile 
records should be strictly limited and at some point in time prohibited. We suggest, 
however, that records of serious juvenile offenses should not be destroyed after a 
two-year period as suggested. Also the dissemination of juvenile records contain- 
ing such offenses, or a series of lesser offenses, should be permitted if the inquiry 
pertains to potential employment in a sensitive position affecting the national 
security or a vital public service ; 

(c) We agree that state licensing practices are sometimes abusive and that a 
careful review of unnecessary discrimination against persons with criminal records 
should be made and appropriate steps taken to correct the situation; 

(d) We believe the suggestions involving expvmgement and annuUment are too 
sweeping and that criminal record information should be maintained except in a 
few specific cases; 

(e) We generallj' agree that public mstitutions should set an example for private 
industry and hire ex-offenders whenever this can be done without significantly 
threatening the security of the agenc}^; and, 

(f) We agree that civil service examinations and job announcements should be 
made readily available to persons serving time in prisons, and that prison train- 
ing programs should meet union apprenticeship standards whenever possible. 

As you will note, we have not discussed the practical problems which would be 
created by legislation prohibiting law enforcement agencies from divulging arrest 
records not followed by conviction if the record request is in connection with an 
application for employment, etc. For a discussion of our views on this subject, 
at least insofar as it relates to the Identification Division of the FBI, I refer your 
attention to Mr. Santarelli's testimony of March 23rd before j^our Subcommittee. 
I hope this information has been helpful to you. 
Sincerely, 

Hugh M. Durham, 
Chief, Legislative and Legal Section. 

Mr. Edwards. Would the Department of Justice submit to the 
committee a Hst of persons and agencies to whom arrest records were 
given, those from Avhom requests have been received during say some 
30-daY or GO-da}^ period with an indication of which requests were 
serviced and which were denied? I think it would be helpful. Just give 
us a typical 30-day period of a printout of what requests have been 
received from what agencies and what has been disseminated and wliich 
have been denied, ^^'ith no details. 

Air. Ponder. We would have to start on a particular daj^" and do it 
in the future. Adminstratively it can be done, but we can't go back 
and rehash it. We can tell you how many we got from a contributor, 
say the sheriff's office in Benton County, Calif., but we cannot tell 3^ou 
how many of these were idents and how many were not. We would 
have to run a surve}". 

Mr. Edwards. Perhaps you can start at a date in the future and 
run for 30 days and give us a printout of what it would be. 

Mr. Ponder. Of the agencies that submitted prints to us? 

Mr. Edwards. Yes, the requests that came in for submissions and 
the ones that you found records of and submitted and the ones that 
you denied. 

Mr. Ponder. We can do that. 

Mr. Edwards. I believe Mr. Wiggins has a couple of more ques- 
tions and then Mr. Garrison. 

Mr. Wiggins. I would like to make a request, if the chairman would 
concur. Would you furnish several typical examples of the records 
you maintain? The name could be obliterated, that is not of interest to 
the committee, but I would like to have in the record the type of in- 



96 

formation that you retain in your files. A typical record of that type 

of information is the type I would like to be submitted for our record. 

(The following information was furnished to the subcommittee:) 

Attached are samples of two simulated FBI identification records that are 
typical of those maintained and disseminated. The information appearing in an 
FBI identification record is obtained from fingerprint cards and disposition forms 
submitted to the FBI. 



97 



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99 

Mr. Wiggins. Also, is it within your capability to procure for the 
committee a typical arrest record that is maintained by some jurisdic- 
tion other than the FBI, a State jurisdiction? Again, we are not 
interested in the names, but simply a representative tj'pe of arrest 
record which is the subject of this legislation. Can you do that? 

Mr. Velde. That can be supplied assuming you want a State 
summary as well as a local record. 

(The following information was referred to the subcommittee.) 

The FBI is not in possession of a typical arrest record maintained by another 
agency. 

Mr. Wiggins. Yes. 

Mr. Santarelli. Remembering that some of these jurisdictions 
vary very widely from others and I am not sure what is typical. 

Mr. W^iGGiNS. I think you should feel free to send several. At 
least we should know what we are dealing mth. Can that be done? 

Mr. Santarelli. Yes. 

Mr. Wiggins. I have a quick question mth reference to the legis- 
lation before us. We are dealing typically with kind of a three-legged 
stool. First, the agency that made the arrest. Since it made the 
arrest, I take it there is no problem about its knowledge of the arrest 
for some future purpose. Then we are dealing with the second agency, 
and that is the want-to-know agency. It knows nothing about the 
man's record, but it is curious for one reason or another and wants 
to know. 

And third is an agency like the FBI that is a repository for that 
information. 

That is the three-legged stool with which we are dealing. Given that 
fact situation, I should like you to refer to section 3105 of the legis- 
lation before us, which is the court order situation and comment upon 
the workability of that section. It provides that the disseminating 
agency may, if it \vishes to do so, go into Federal court to disseminate 
or maintain a record that would othermse not be the subject of 
dissemination. 

But why would the FBI be so interested as to go into court to 
respond to a request that is of no real interest to it, that is, it has 
no knowledge of the reason for the request, nor any great interest 
in it? On the other hand, why would the requesting agency go into 
court unless it really knew the answer? 

In other words, it doesn't know what the response would be, so 
why would it have sufficient interest to assume that there is a record 
worth its going into Federal court and taking all that time and 
trouble? 

And the third leg of the stool is not involved at all. 

Under what circumstances would we ever use this procedure? 

Mr. Santarelli. That is one of the reasons we commented as we 
did. We didn't see it as a workable solution. 

Mr. Wiggins. If that is your answer, I am glad to have the Justice 
Depjirtment on record for that, because I can't understand any 
realistic circumstances either. 

Mr. Santarelli. In Federal cases we would be interested, but we 
are not prohibited in that regard. 

Mr. Wiggins. That is right. Well, I appreciate your response- 
Mr. Edwards. Mr. Garrison. 



100 

Mr. Gakrison. I have one teclinical question. You referred on page 
4 of your statement to the difference between the criminal and appli- 
cant fingerprint files. Now if an agency sends you a set of unknown 
fingerprints and they simply want identification of them, are those 
prints compared against both groups, that is, against all prmts in your 
file, in order to attempt identification? 

Mr. Ponder. That is correct. This usually occurs in unknown de- 
ceased cases or amnesia cases or a crimmal case but more often it will 
be the unknown deceased category. 

Mr. Garrison. Is there any technical difficulty in using, for pur- 
poses of identification, a clear photographic reproduction of the 
print? 

Mr. Ponder. No, we can use a photographic reproduction. 

Mr. Garrison. For example, if the provision of the bill which 
would require the destruction of records, including fingerprints of 
more than 2 3^ears old where no prosecution were still pending, were 
enacted, would you be able, for example, to establish a policy whereby 
all fingerprints that came into your possession would be duplicated 
and put in the other file rather than the arrest file or criminal file? 
I am talking about technically, would there be any problem involved 
in simply seeing to it that you had two copies on file, one would be 
for the general purposes and the other would be part of the arrest 
record, so that if the arrest prints had to be destroyed because they 
were part of a destroy able arrest record, nevertheless your duplicate 
set as part of the general file would still be available? 

Mr. Ponder. We would like not to do that simply because of lack 
of space. We are now in a purge program trying to eliminate duplicates 
in the civil files which can contain as many as three or four sets of 
prints on an individual. We have not up to this point consolidated 
those and kept one and destroy the rest. 

What you are advocating is that we would be making a copy of a 
print to put m the other file for some, I suppose, identification purpose 
at some future date, just to have a record of it. We are against tiying 
to maintain the fingerprints of everybody in the United States hi our 
civil file simply because of space and limited utility. We conduct very, 
very few searches in the civil file and only in cases I previously 
enumerated. 

Mr. Garrison. If the bill's provision requiring the destruction of 
the fingerprints along with the arrest record were enacted, wouldn't 
you rather have that other copy available as part of the noncriminal 
file than to have someone incapable of being identified because you had 
been obligated to destroy the only fingerprint record? 

Mr. Ponder. Well, I don't underestimate the value of identifying 
an unknown deceased, but you are speaking in terms of quite a sub- 
stantial lot of money and storage space to do something like that. 

Mr. Garrison. I don't mean only unknown deceaseds, but don't 
you get inquiries from police agencies which find sets of prints in in- 
vestigation of criminal cases and what they send you is unknown — 
they don't know whose it is? 

Mr. Ponder. That is correct. Maybe you are referring to our 
latent fingerprint files in which we process paper or evidence for latents 
and search those against a limited file, but that can only be done 
against a very limited file at this point, until we are fully automated. 



101 

Mr. Garrison, Do you anticipate when j'-ou become fully auto- 
mated that you would be able to test those latents against the entire 
filing system you have? 

Mr. Ponder, Yes, sir; once it is in the data base, 

Mr. Garrison. Now, under those circumstances, you would not 
want to be in a position where simply because the print came into your 
files by virtue of arrest you have to destroy it, whereas if it had come 
into your possession for some other reason such as by virtue of military 
service or civil service, you would be able to use it ad infinitum? 

Mr. Ponder. But not to disseminate information from, 

Mr. Garrison. For purposes of identification. 

Mr. Ponder. Yes. For purposes of identification I reiterate I 
question the value of whether the Government should spend the type 
of money to maintain such a print for a limited use, 

Mr. Edwards. The subcommittee would like to visit the FBI files 
sometime and we would like to be invited and have members of the 
staff go first to prepare the way. Could that be arranged? 

Mr. Santarelli. I think it can. 

Mr. Edwards. Also, we think you three gentlemen very much for 
your most interesting dialog. I think we are all working toward the 
correct goal and I am siu-e you will be interested in the further pro- 
ceedings of the committee. We are going to have more hearings on this 
subject. We thank you again. 

Mr. Santarelli. Thank you, Mr. Chairman. We want to assure 
you we will work with you on this subject, 

Mr, Edw^-vrds, The subcommittee will be adjourned. 

(Whereupon, at 12:20 p.m., the subcommittee adjourned.) 



DISSEMINATION AND USE OF CRIMINAL ARREST 

RECORDS 



THURSDAY, APRIL 13, 1972 

House of Representatives, 

Subcommittee No. 4 of the 
Committee on the Judiciary, 

Washington, D.C. 

The subcommittee met at 10 a.m., pursuant to recess, in room 2237, 
Rayburn House Office Building, Hon. Don Edwards of California 
(chairman of the subcommittee) presiding. 

Present: Representatives Edwards, Wiggins, and Keating. 

Also present: Jerome M. Zeifman, counsel; Samuel A. Garrison III, 
associate counsel; and Alfred S. Joseph III, assistant counsel. 

Mr. Edwards. The subcommittee will come to order. 

Subcommittee No. 4 of the House Committee on the Judiciary 
continues today public hearings on H.R. 13315, a bill to provide for 
the dissemination and use of criminal arrest records in a manner that 
insures their security and privacy. 

Our first witness today is the assistant district attorney and chief 
of policy and planning division, city of Philadelphia, Mr. Walter W. 
Cohen, who has a distinguished record which I will insert in the 
record at this point. 

Biographical Data on Walter W. Cohen v 

Current Activitj-: Assistant District Attorney, Chief of Policy and Planning 
Division, City of Philadelphia. 

Personal Background: Born November 11, 1940, in New York City; Married 
Sara Kaj- Sherman, 1964; Two children: Elisabeth, 4 years old; Kathyanne, 
7 months old. 

Public Service: District Attorney's Staff, July 1967 to present. Pre.-ident 
Kennedy's Committee on Equal Employment Opportunity Contract, Complianc3 
Officer, 1963-1984; United States Department of Labor Management Intern, 1963. 

Education: University of Pennsylvania Law School, J.D. 1967 Winner, Keedy 
Cup Moot Court Competition; Harvard College, A.B. 1962 cum laude, Dean's 
List, Undergraduate Athletic Council. 

Bar and Law Enforcement Associations : Philadelphia Bar Association (Criminal 
Law Committee, Joint Committee of Lawyers and Social Workers) ; Pennsylvania 
District Attorneys Association; National District Attorneys Association; District 
Attorney's Advisory Committee on Prisons; Governor's Justice Commission, 
Philadelphia Regional Planning Council, Courts Committee; National Commission 
on Criminal Justice Standards and Goals Consultant, Courts Task Force. 

Community Activities: Safe Streets, Inc., Board of Directors; Greater Phila- 
delpliia Council on Narcotics and Dangerous Drug Abuse, Inc., B )ard of Directors; 
Golden Slipper Club; American Jewish Comnaittee; Harvard Club of Philadelphia. 

Mr. Edwards. I would like to mention Mr. Cohen was a member 
of President Kennedy's Committee on Equal Employment Oppor- 

(103) 



104 

tunity, a contract compliance officer from 1963 to 1964, a management 
intern for the U.S. Department of Labor in 1963. 

Mr. Cohen is a graduate of Harvard College and of the University 
of Pennsylvania Law School. 

Mr. Cohen, we are delighted to have you here and I hope that 
you will carry back to Philadelphia with you the warmest wishes of 
the chairman of the subcommittee to the district attorney, who is a 
friend of mine and a gentleman I have admired for many years. 

Mr. Keating, I would yield to you at this point. 

Mr. Keating. I have no comments to make at this time, Mr. 
Chau'man. I thank you for the opportunity. 

Mr. Edwards. You may proceed, Mr. Cohen. 

STATEMENT OP WALTER W. COHEN, ASSISTANT DISTRICT ATTOR- 
NEY, CITY or PHILADELPHIA, ACCOMPANIED BY JOHN POULKES, 
LEGAL INTERN, OPPICE OP THE DISTRICT ATTORNEY, CITY OP 
PHILADELPHIA 

Mr. Cohen. Thank you, Mr. Chairman. It is a pleasure for me 
to be back to what was once my home base for about a year and a 
half, and also the place I met my wife, so Washington has some 
special meaning for me. 

I have sitting mth me today John Foulkes, who is a legal intern in 
our office, and formerly was a delegate to the White House Conference 
on Youth, which was held out in Colorado a year ago. He has been 
working in our office on a number of different problems, in particular 
some matters involving the drug area. He assisted me in some of the 
research in preparing this testimony. 

Mr. Edwards. You are welcome, too, sir. 

Mr. Cohen. I would hke to start off by going through the prepared 
testimony, because I have attempted in preparing the testimony to 
be as brief as possible so that we could cover the salient points. There 
are other points in the bill which I think merit discussion and we 
might get into that as I proceed. 

The issue of controlling the dissemination and use of criminal arrest 
records is a matter of increasing importance to law enforcement officials 
at the Federal, State, and local levels. The Law Enforcement As- 
sistance Administration of the U.S. Department of Justice, under the 
direction of Jerris Leonard, has taken the lead in encouraging criminal 
justice agencies to develop criminal history information systems with 
the use of computer resources. 

In Philadelphia, we have begun to implement an on-line, real-time 
information system that will serve the police, the prosecutor, the 
courts, and the entire correctional field. The initial planning for this 
project was made possible by a grant of $250,000 out of Federal discre- 
tionary funds directly from the Law Enforcement Assistance Adminis- 
tration. This has now been supplemented by an additional $500,000 
from local action funds for program utilization. 

I would like to add here in just mentioning this, that I noticed after 
I had prepared the beginning of my testimony that the Law Enforce- 
ment Assistance Administration has come under attack in the news 
media as a result of another congressional committee investigating 
their activities. I have certianly no comment on what may be in that 



105 

report in that I have not seen it and I think it certainly raises issues 
that Congress should be concerned with in investigating. 

I only point this out because at the same time I think that the Law 
Enforcement Assistance Administration is the first agency on a na- 
tional basis to recognize the need for computerized information data 
for law enforcement agencies and they, in fact, funded the initial 
program here when the local State action agency was not interested 
in funding such a program. We have now established in Philadelphia 
a group which is called the Cojint Group, which is a combined joint 
information network for the police, the courts, the correction fields, 
the prosecutor, and all of the criminal justice_ agencies including 
probation, which is a spinoff of the courts. This is something that is 
currently now first going from the planning stage to the implementa- 
tion stage. The unfortunate aspect of this program, and I do not 
have the technical background to be able to really say that it is right 
or wrong, I guess, but the computer technicians whom we have con- 
sulted and who are now employed by us say that it is impossible to go 
back to computerized data which is already in the information banks. 

The Philadelphia Police Department, for example, has some 400,000 
criminal arrest records in its manual files. They say that it would 
be an absolutely mammoth and wasteful task to go back and cate- 
gorize these into a computer. At the same time they recognize the 
importance and the need for putting all future information on what 
they call a day-1 approach into a computerized system that will be 
available to all the law enforcement agencies. 

As this system has developed, we have seen the need for giving 
very careful consideration to imposing appropriate controls with 
regard to the use of the information made available by this centralized 
and computerized recordkeeping. Essentially, the test of an adequate 
control mechanism is a balancing test — a balancing which maintains 
the securit}^ of criminal arrest records and at the same time respects 
the rights of individual privacy. Constant attention must be devoted 
to this question as the number of persons and agencies who have 
access to the data increases, along \\'ith a concomitant increase in the 
number of times the data is actually used. Law enforcement au- 
thorities must recognize the necessity for controls, if we are to strike 
the balance true. 

LIMITATIONS ON DISSEMINATION OF INFORMATION 

Sections 3101 and 3103 of H.R. 13315 represent a reasonable method 
of regulating the dissemination of records of criminal arrests which 
do not result in conviction. These sections limit access to criminal 
arrest records only to officers or employees of law enforcenaent 
agencies and, conversely, limit officers or employees of the United 
States or of a federally assisted law enforcement agency from dis- 
seminating such records to anyone outside the law enforcement 
field, except for the individual involved, who is given the right to 
inspect any record which may be maintained concerning him. 

It is important that the distinction between records of convictions 
and records of arrests only be recognized in any attempt to set forth 
standards for release of information by law enforcement agencies. 
There are legitimate reasons wh}' government departments outside 
of the criminal justice system, and even private industries, be afforded 



106 

the opportunity to review records of convictions on the part of 
Hcense or job applicants. However, even in these instances, such 
requests for records of convictions should be honored only when 
accompanied by a written release signed by the subject of the record. 

I would like to add this is the procedure which the Philadelphia 
Police Department computer system follows in all such requests 
along with a $3 fee to be paid for the record. 

This type of limitation would allow the individual to control who 
other than a law enforcement official can gain access to information 
concerning his background. 

Section 3104 would permit an individual who believes that a crim- 
inal arrest record concerning himself is being maintained or dis- 
seminated illegally to petition in a U.S. district court for an injunctive 
order prohibiting such maintenance or dissemination. I submit to you 
that this section should not state the sole recourse for such an ag- 
grieved individual. Rather, he should first be able, and in fact be 
required, to seek recourse by appropriate administrative procedures 
within the relevant law enforcement agency. This section improperly 
assumes a disinterest on the part of criminal justice officials in main- 
taining accurate records or disseminating such records only through 
appropriate channels. Such an assumption falsely represents the 
concern which most police and prosecutors have for considerations of 
individuals' rights. 

LIMITATIONS ON MAINTENANCE OF INFORMATION 

While I urge support generally for the provisions of H.R. 13315 
regarding limitations on dissemination of information, as discussed 
above, I respectfully urge that this subcommittee of the House 
Judiciary Committee strike clause 1 of subsection (a) of section 3102 
of this proposed legislation. This clause would essentially provide 
for automatic expungement of any criminal arrest record where the 
arrest occurred more than 2 years pre\dously and where the 
particular individual involved had not been convicted on a prior 
felony charge. 

State and Federal appellate court decisions recognize instances 
where valid use may be made of criminal arrest records which are 
not followed by conviction. For example, the Penns3dvania Supreme 
Court recenth- has ruled that evidence of a prior arrest is admissible 
against a defendant in a criminal case where the defendant by his 
direct testimony places his character into issue at his trial. Common- 
wealth V. Smith, 432 Pa. 517, 248 A. 2d 24 (1968). See also Mwhelson 
V. United States, 335 U.S. 469, 59 S. Ct. 213 (1948), where the Su- 
preme Court upheld the introduction into evidence by the prosecutor 
of an arrest recorded 27 years prior to the instant trial during cross- 
examination of the defendant's v.-itnesses on the issue of his reputation. 

In addition, the fact of an arrest on a narcotics charge, where the 
illegal drugs seized are subsequently sui)pressed from evidence be- 
cause of the unconstitutional nature of the search, is admissible 
into evidence at trial on a subsequent narcotics charge if the defendant 
testifies at the subsequent trial that he has never seen or been in 
possession of illegal drugs. Walder v. United States, 347 U.S. 62, 
74 S. Ct. 354 (1954). See also Harris v. New York, 401 U.S. 222, 
91 S. Ct. 643 (1971), where the Court, in an opinion by Chief Justice 



107 

Warren E. Burger, permitted a statement inadmissible in the case 
in chief under Miranda v. Arizona to be used to impeach the de- 
fendant's credibihty. 

The use of arrest records has also been recognized as a valid, stand- 
ard practice at the point of sentencing. A convicted defendant's 
prior criminal record, including arrests without con\"ictions, is part 
of the presentence report made available to the trial judge for his. 
determination on sentence. In many cases, consideration of the 
arrest record serves the defendant's best interests. For example, if 
a defendant has a long history of drug arrests which would indicate 
some degree of involvem.ent in the drug culture, he ma}- be recognized 
more readil}' as a proper subject for a sentence to a drug rehabilitation 
or other treatment program. 

I have cited here two cases which came up in Philadelphia in the 
past few years which I think have some bearing on the topic which 
you are considering. 

COMMONWEALTH VERSUS T. L. BAILEY 

On a hot summer day in June 1968, T. L. Bailey was charged with 
inciting to riot, assault and battery, breach of the peace, and resisting 
arrest in connection with a street fight which had led to the gathering 
of approximately 300 people. The gathering had every potential for 
exploding into serious street violence, a possibility which was en- 
couraged by the defendant's actions in attempting to hinder police 
officers who arrived to restore order. 

T. L. Bailey had been arrested more than 2 years pre\dously and 
charged with committing the felony murder of two candy store pro- 
prietors in the course of a robbery which netted $1.65. He had signed 
a confession to his part in the murders, but the case against him was 
brought to trial after the decision of the U.wS. Supreme Court had been 
handed doun in Miranda v. Arizona in June 1966. This decision held 
that a confession could not be introduced into evidence unless the 
defendant had been given warnings as to certain constitutional Hghts 
prior to his making any statement while being questioned by police. 

Because Bailey had been arrested prior to the Miranda decision 
and had not been given the warnings required in that subsequent 
decision, and since his confession was the only evidence which the 
Commonwealth had against him, the murder charges had been dropped 
(nolle prossed). His alleged coconspirator in those murders had been 
brought to trial prior to the Miranda decision, had been convicted of 
first degree murder, and was sentenced to life imprisonment. 

District Attorney Arlen Specter personally represented the Com- 
monwealth in the trial of T. L. Bailey in the summer of 1969. At the 
the conclusion of the jury trial, the defendant was found guilty. 
Based on the picture wliich the sentencing judge, the Honorable John J. 
McDevitt III, was able to secure from all the information brought to 
his attention, including the fact of the prior arrest for homicide, the 
defendant was sentenced to two consecutive prison terms totaling a 
minimum of 10 months and a maximum of 2.3}2 months in jail. Such a 
sentence was deemed appropriate by the court in a situation where 
a defendant with no prior record at all would most likely have been 
placed on probation. 

78-242 — 72 S 



108 

COMMONW^EALTH VERSUS PAUL D. WARE 

The U.S. Supreme Court has granted a petition for ^^rrit of certiorari 
filed by the district attorney's office in Philadelphia in the case of 
Commonwealth of Pennsylvania v. PaulD. Ware, which is now scheduled 
for argument in the Supreme Court in its October term, 1972. This 
case directly challenges the Miranda decision and is the first oppor- 
tunity which that court has taken to review its prior ruling on 
confessions. 

Paul Ware was arrested on September 27, 1963, in the midst of an 
apparent attempted burglary. Because he matched a description in 
a wanted circular issued in connection wdth a homicide case, Ware 
was later questioned about this homicide and others and, on October 3, 
1963, he confessed to being the perpetrator of four separate robbery 
murders in which his modus operandi had been to gain entrance, while 
dressed in a formal black suit "with bow tie, dark hat and sunglasses, 
to the homes of very elderly persons on some pretext, then rob his 
victims and kill them in such a way that the deaths would appear 
accidental — two were pushed do^\^l basement stairways; one was 
crushed under a heavy dresser. 

On December 12, 1963, after being indicted. Ware was declared 
incompetent to stand trial and was committed to Farview State 
Hospital. SUghtly more than 3 years later, on July 19, 1967, he was 
determined to be competent, after a full-stafl' hearing at which members 
of the Fairview medical staff, the department of psychology, the 
social work department and others were present. 

On May 23, 1968, the case was listed for a hearing on the defendant's 
motion to suppress his confession. The motion was granted on the 
ground that the defendant had not received the full warnings set forth 
in Miranda v. Arizona. On December 12, 1968, the Philadelphia dis- 
trict attorney's office filed a petition for the entry of a nolle prosse 
because the Commonwealth could not prove its case without intro- 
ducing into evidence the defendant's statement. The nolle prosse was 
granted. 

Due to some subsequent developments in appellate court decisions, 
the Commonwealth moved for removal of the nolle prosse, a request 
which was granted on December 11, 1969. A rehearing was then allowed 
on the suppression issue and, on November 13, 1970, it was held that 
the confessions were voluntarily made and not barred by the Miranda 
decision. The Pennsylvania Supreme Court allowed an interlocutory 
appeal after certification that an important question of law was in- 
volved. On December 20, 1971, that court reversed the lower court on 
the ground that Miranda v. Arizona must be applied to the defendant's 
1963 confessions. 

The case was then in a posture where a petition for writ of certiorari 
to the U.S. Supreme Court would be appropriate. Such petition was 
filed and was granted by the court on March 20, 1972. 

Under the language set forth in H.R. 13315, these four arrests on 
murder charges would have been wiped from the records because more 
than 2 years after the date of the arrest the nolle prosse was entered, 
at which point there was no prosecution pending in a court. Regardless 
of what ruling might be handed down by the U.S. Supreme Court 
when it considers Commonwealth v. Ware, the case would have ended 
in 1968 without any further opportunity for litigation on the most im- 



109 

portant ruling in the criminal law field to come from the U.S. Supreme 
Court in the last decade. 

RECOMMENDATION FOR STANDARDS ON USE OF INFORMATION 

Because of the nature of the uses made of criminal arrest records, 
as I have outlined above, I suggest that the decision on the eradication 
of such records be made b}^ the prosecutor or, in the context of an 
expungement petition, by the appropriate court. The prosecutor is 
the official in the criminal justice system who is best situated to strike 
the proper balance on interests of security and privacy. 

I would suggest to this subcommittee that the preindictment pro- 
bation program which we have developed in Philadelphia serve as a 
model for the kinds of standards to be used by the prosecutor in 
determining what criminal arrests should be removed from an in- 
dividual's record. This program is an innovative measure designed to 
screen out from the entire criminal justice system those cases which 
can most appropriately be handled b}^ a voluntary, preindictment 
disposition in which a defendant is placed on probation for a selected 
period of time. If there are no subsequent arrests during this period of 
time and if he successfully completes a probationary program, the 
prosecutor then determines that his record should be expunged. 

This program was initiated by cooperation of the district attorney's 
office in Philadelphia and the Hon. J. Sydne}- Hoffman of the Superior 
Court of Permsjdvania. In its first year of operation, 9,267 cases were 
reviewed and 2,056 were referred for preindictment disposition. This 
represented some 22 percent of the total number of cases listed in the 
criminal court system in Pliiladelphia during 1971. Most of the cases 
placed in this program were instances of defendants \vith no prior 
record or \\dth a minor nonassaultive prior record. Many of these 
were drug cases involving offenders who were at the beginning of the 
road to hard-core heroin addiction. 

We have seen in our contacts vnth defendants who have gone 
through the preindictment probation program that individuals who 
for even brief periods become involved with the drug culture experience 
tremendous difficulty in the future as they mature and seek employ- 
ment. Often, these individuals are trapped in being able to secure jobs 
only in the drug therapy field. I support the thrust of this proposed 
legislation which would limit accessibility to criminal background 
information on the part of prospective employers only to information 
concerning charges which result in conviction. I submit to you that, to 
do otherwise, would lead to a serious invasion of individual liberty 
which would not be counterbalanced bv anv legitimate law enforce- 
ment concerns. 

CONCLUSIONS 

Our freedom and our hberty and our privacy are treasured posses- 
sions to us in this country. They are components of what makes the 
United States a very special place. We all detest the thought of having 
"Big Brother" watcliing us. I do not want to turn the police or the 
prosecutor into "Big Brother." Perhaps this is so because I have seen 
from my vantage point as a prosecutor what potentials exist for abuse 
of power. 



no 

At the same time that I endorse the limitation of dissemination of 
information in regard to nonlaw enforcement agencies, I urge this 
subcommittee not to pass legislation which would provide for the 
automatic expungement of arrest records after 2 years have passed 
since the time of arrest. These records serve a necessarily limited but 
nevertheless important law enforcement function. The potential for 
abuse and invasion of privacy is kept at a minimum where dissemina- 
tion of this iTiformation is tightly controlled and where prosecutors 
are charged through appropriate standards to select out first offender 
and other appropriate cases for record expungement after successful 
completion of a preindictment probation program. 

I think that Thomas Jefferson was right in his philosophy that 
government governs best which governs least. Government should 
have only the power which is absolutely necessary to accomplish its 
just ends. This power shoukl be closely restricted within the halls of 
government so that power is not necessarily extended to those who do 
not need it to accomplish their own just ends. This country needs to 
give its local, State, and national law enforcement agencies greatly 
increased resources to do an effective job in the areas of crime pre- 
vention, crime detection, and correctional reform. To this end, it is 
not necessary that the privacy of an individual be invaded without 
cause. At the same time, it is not necessary that the protection of 
other individuals be hindered without cause. 

There is a current feeling adrift in this age of technological advance 
and corporate and government expansion that individuals are be- 
coming merely numbers on a field manipulated by others. Too many 
instances have come to public attention where computer mistakes 
have caused embarrassment, inconvenience, and seriously threatened 
the security of many people. Data banks collect data and eventually 
disseminate the data to those who have no right to know it. The public 
should be encouraged in knowing that Congress is considering legisla- 
tion to move forward a,gainst these abuses. The public should also be 
able to rest assured that this action will not hinder law enforcement 
agencies in carrying out their duties. In the above discussion, I have 
attempted to balance these competing but consistent goals. 

Mr. Edwards. Thank you very much, Mr. Cohen, for a very crea- 
tive, and I am sure useful, testimom^. 

I might add that speaking for myself on\j, I generally agree with 
you in regard to portions of the bill with which you find yourself in 
disagreement. I find myself in disagreement with portions of the bill 
as a result of your testimony and other testimony that we have re- 
ceived in previous hearings. 

We learned that in Washington, D.C., for many years a police 
department record would be made available to local merchants for 
job applicant cases. Apparently by request, either in writing or by 
telephone, the arrest records would be just mailed out to any employer 
who was considering an applicant. This practice resulted in a great 
deal of dismay and unfairness, and unequal treatment to many of 
the applicants. A commission was appointed, and the commission 
made a recommendation that the department would continue to 
provide private employers with rap sheets from the Washington, 
D.C., police department, but, No. 1, there would be a fee, and No. 2, 
the rap sheets would consist only of conviction records. 



Ill 

The testimony of the ex-corporation counsel informed the commit- 
tee that the system is working rather well. Is that the system that 
you have in Philadelphia? 

Mr. Cohen. Mr. Chairman, that is the system that I am told we 
have in Philadelphia. But I would really not want to state that for 
the record here because I am not the police commissioner. I received a 
directive from the poHce department, and that directive is very 
general. It is a written directive. It would indicate that is not the 
procedure. That is a directive that is about a year old and it speaks in 
very general terms about those who are allowed to have access to 
information, and it includes private industry. 

However, I am told by the people who run the computer outfit 
there that in fact they do not give out the information on arrests, 
and they charge a fee for information on the convictions. 

Mr. Edwards. Even though the arrest records are in the computer 
when a printout is made, is the printout corrected or changed so that 
naked arrest records without disposition are eliminated and the 
conviction records are left in? 

]\Ir. Cohen. I think what happens is the information is screened by 
the police department, but they do inform the employer who may ask 
for an extract of the record that there is a record of an arrest but there 
is no conviction, and therefore we cannot give you anything. 

Mr. Edwards. Do you have a problem with that? I would. 

Mr. Cohen. Yes, I do. 

Mr. Edwards. We have a Federal law that allows banks and savings 
and loan institutions to apparently write to the FBI and get an arrest 
record of applicants for jobs. There has been a suggestion that this 
law be changed so that, first, a fee would be paid. The Federal Govern- 
ment is providing many millions of dollars' worth of free services 
to affluent industries, whereas, in Philadelphia there is a fee to be 
paid. 

The second change would provide that records that are disseminated 
to savings institutions would be limited to conviction records. What 
would be your observations on that change in the Federal law? 

Mr. Cohen. I think that is ap])ropriate, ^Ir. Chairman. There is an 
issue that flows through this whole area that really comes do\vn to the 
probative value of an arrest record. I think it is appropriate to restrict 
information on the arrest record to the law enforcement agencies 
which are better equipped to luiderstand what an arrest means or 
M'han an arrest doesn't mean. The experience that I have seen, and I 
have talked to some employers about this, is especially in the job 
market today they just won't take the chance. If they inquire about 
somebody and they find out he has anything on his record, they just 
won't hire him. 

Mr. Edwards. In other words, the rap sheet was used as a substitute 
for a res])onsible investigation, is that what you are saying? 

Mr. Cohen. For a responsible inquiry about the individual. I would 
not want to characterize it as an investigation in that I don't think 
everybody has to be investigated. Maybe it is just a matter of seman- 
tics, but I would rather say a review of the job applicant, it is a simpler 
way. And the abuse is when the police department says he has his 
fingerprints on file here because there is an arrest record but no con- 
viction and therefore we have nothing to send you. 

Mr. Edwards. He would not get the job. 



112 

Mr. Cohen. That is enough; he would not get the job. 

Now, our premdictment probation program is a new program, and 
we do not have experience yet on that because we have not had any- 
body successfully complete the program. We are at the stage now since 
it has been 1 year, where some people are now successfully completing 
the program, they have had no subsequent arrests since their fu'st 
arrest, and they will, we hope, if we can work out with the police 
department, they will have those records automatically expunged. 

Now, there is a manpower problem which also pervades the whole 
area, and I think that was the tlii-ust, if I could get the thrust, out of 
Mr. Santarelli's comments, which I read, when he was before this 
committee. There is a manpower problem in accurately recording what 
is now manually recorded. The Philadelphia Police Department is 
about 6 months behind in recording dispositions on cases. So where we 
have a situation such as we have of serious trial dela}^ between arrest 
and trial to begin with because of the court backlog, and the inadequ- 
ate facilities to try cases within 3 months of arrest as we feel they should 
be tried, you have to add for purposes of law enforcement informa- 
tion systems an additional 6 months. It is growing every day, because 
they are just not keeping up with it, between the time that the court 
has a conviction recorded and sends that conviction to the police, and 
the time taken for the police to manuall}^ record that in their data 
sheets. 

Now, once we get the interlocking computer system, as soon as a 
court disposition is made and recorded with the computer, that will 
now be available to the prosecutor, to the police, courts, corrections, 
and so on. 

Mr. Edwards. Would you also agree, Mr. Cohen, that the present 
system of nationwide dissemination of arrest records is ])articularly 
unfair to the underprivileged, the minorities, the blacks, and the 
bro^^^lS in our country? 

Mr. Cohen. Air. Chairman, I think so. Though I am not totally 
familiar with what goes on ever3^where. I think the jjroblem is, though, 
a lack of uniformity which makes it unfair to the minorities and in 
other places makes it unfair to some people as opposed to their 
neighbors no matter who they are. There are no uniform standards 
from State to State, and there are no uniform standards vis-a-vis 
the Federal Bureau of Investigation. 

Now, the problem with the Federal Bureau of Investigation is 
comi:)ounded by the manpower problems everywhere else. Where 
our police department does not record the information on disposition 
which it gets from the courts until 6 months or so later, the FBI 
doesn't get that information until after the police have recorded it. 
I think that the most serious problem is the fact that the FBI, right 
now, as I understand it from having looked at their rap sheets which 
come to the Philadelphia Police Department, really keeps an arrest 
record system and not a conviction record system. 

In Philadelphia, say a man is picked up and charged with an offense, 
and we inquire in the prosecutor's office first from the Philadelphia 
Police Department whether he has a record, we will get back an extract 
that says no record. We would then inquire next from the FBI and we 
would get back a sheet which would say, for example, arrested, robbery, 
burglary, Cincinnati, Ohio, November 14, 1963; arrested, robbery, 
burglary, St. Louis, February 5, 1968, and that is all we would get. 



11-3 

We would then have to inquire of the Cincinnati or the St. Louis 
PoHce Departments to find out the disposition and it is very possible 
that those departments in turn would have to inquire of the court 
system where the bills of indictment are kept as to the disposition. 

So that you have a lack of uniformity that puts throughout the 
system too much to the chance of who is your prosecutor and who is 
your police chief. So that I think there is a potential for unfairness 
and it is usually the experience that those who are least able to speak 
for themselves and represent themselves are the most likely to be 
treated unfairly, or those who are most likely to become involved in 
criminal activity — or I should say in alleged criminal activity — which 
is unfortunately the situation. 

I know that if I stood on the corner outside my house I could 
probably walk up and do\\Ti all night long and the police car would 
go by and nothing would happen. But if a black person walked up and 
down that corner all night long it is possible he would be arrested. 

These are realities that have to be faced eventually, I think, when 
Congress in Washington deals mth situations throughout the country. 

Mr. Edwards. Thank you. 

Mr. Wiggins, the gentleman from Cahfornia. 

Mr. Wiggins. Thank you, Mr. Chairman. 

One of the recommendations made by you in your formal testi- 
mony, Mr. Cohen, is that prior to an action's bemg filed in district 
court a person belie\dng himself to be aggrieved may seek to correct 
the problem administratively wdthin the department. Are there proce- 
dures that exist in your department or in Philadelphia, to your knowl- 
edge, that would permit that to happen? 

Mr. Cohen. Yes, there are. The individual is entitled to access to 
his record. 

Mr. Wiggins. Would you describe the machinery of that procedure? 

Mr. Cohen. It is a signed request from himself, a letter. Anybody 
can -wTite a letter to the police department, the police commissioner, 
and ask for his report. He will probably get it more quickly if an 
attorney writes, but he can go to the legal aid and the attorney would 
WTite such a letter. 

Mr. Wiggins. Is this a photo duplication of the actual arrest record 
or is it a summar}^ of what is in that record? 

Mr. Cohen. It is labeled at the top "Extract of Criminal Record," 
and it is a copy of what is sent to the prosecutor's office. It includes 
the date of every arrest, the charges, all the charges. For example, in 
one instance it may have aggravated assault, robbery, burglary, lar- 
ceny, recei\dng stolen goods. Then there will be a disposition which 
"\\411 say guilty or discharged, and then there will be the name of the 
judge that made the disposition. 

Now, this is generally not totall}!- accurate, because in many in- 
stances the guilty is a plea of guilty and that is not indicated on this 
extract. Also the charge that he may have pleaded guilty to, or been 
found guilty of, could be receiving stolen goods and not aggravated 
robbery. 

Mr. Wiggins. If an individual believes that an entry in that ex- 
tract is incorrect, then what procedure does he foUow in Philadelphia 
to get it corrected? 

Mr. Cohen. That can be handled generally by his going back to the 
police department with, his record. He would then have recourse in 



114 

what we call our motions court to file a petition to correct his record, 
and it would then come before a trial court judge for his decision. The 
judge would have the power to get all pertinent law enforcement 
records and see what the police department past arrest report would 
say, and what the bill of indictment would say, and make a decision. 

Mr. Wiggins. You also indicated in your prepared testimony that 
it takes about 6 months for a disposition to catch up following the 
fact of arrest. What is the reason for that delay? 

Mr. Cohen. Manpower. The number of cases tried in our courts 
has doubled since 1966 and the police department records' people have 
not increased significantly in personnel. 

Mr. Wiggins. You are receiving some funds from LEAA with re- 
gard to a computer or electronic informational system. Once fully 
implemented would that system cut down on this 6-month delay? 

Mr. Cohen. That system should eliminate the delay because the 
disposition is always recorded in the court as soon as it is made. The 
possibility of delay would be if we do not adequately run the court 
system — not the police. So there is a backlog there. But built into our 
ap])lication is enough personnel to prevent that. In other words, if the 
clerk who has to record the disposition manually on a bill of indict- 
ment does not then feed that into the computer there could be a delay 
there, but there should not be. Once it is in the computer it is in the 
police department. 

Mr. Wiggins. Are you aware of any private service in Philadelphia 
wherein private individuals for profit copy dowTi records of arrests 
right off a blotter that is public information or, perhaps, follow the 
docket in a court, making the public information available to clients, 
such as commercial clients, for profit? 

Mr. Cohen. I am not aware of it. I don't know if it exists or not. 

Mr. Wiggins. Thank you, Mr. Chairman. 

Mr. Edwards. Mr. Keating. 

Mr. Keating. Followmg up Mr. Wiggins' question, I would think 
it would be a terrifically cumbersome and costly ]:)rocess to follow each 
criminal docket. Considering the various do(;kets within a particular 
county, and we still have some police court judges and smaller tri- 
bunals, I think it would be most difficult, but I don't know what the 
cost of the process would be. When Mr. Santarelli was here re]:)re- 
senting the justice department, he indicated in response to one of the 
questions that this recordmaking was very faulty, due to manpower 
limitations. I should not say faulty in the sense that the records aren't 
accurate, but in the sense that delay is a real problem so far as your 
office and law enforcement generally is concerned. 

He said that a lot of times the followup by the various departments 
and agencies in providing the FBI information on convictions was 
either nonexistent or very slow. Do you in Philadelphia have a pro- 
cedure by which you follow through and send data on convictions to 
the FBI? 

Mr. Cohen. I am told by the police computer people that we do. 
I believe that is correct. You still have the time of delay because that 
is not sent on until after it is recorded by the police. 

Mr. Keating. Which is about 6 months? 

Mr. Cohen. About 6 months, and increasing every day. 

Mr. Keating. As to the question of having the records disseminated 
by the FBI, or by any other organization, it should be easy enough 



115 

to separate as to arrests and convictions, because the programing 
of a computer will enable that. That is a very simple process. 

So one goal that you seek, as I understand it — to separate and only 
release convictions as opposed to arrests to non-law-enforcement 
groups — should be easy to accomplish, I would think. 

Mr. Cohen. It would not necessarily be accurate, but the lack of 
accuracy vnW fall, if you can characterize it, in favor of the individual 
because there will still be probably some disposition, convictions, 
that are not matched to arrests. But if the computer only has the 
initial arrest record then it would just screen that out until something 
came in that indicated a conviction. 

Mr. Keating. Is there now anj' basis for, or is anything happening 
to provide, a national uniform system of reporting not only arrests 
but also dispositions? 

Mr. Cohen. The Project SEARCH which is a combined project, 
multi-State and funded by the Law Enforcement Assistance Adminis- 
tration, has uniform standards for those States, and I believe there 
are about 10 initial States, I think 15 States that are now involved in 
this Project SEARCH. There are uniform standards which follow the 
lines that we have discussed which would requu'e the dissemination 
of the conviction information to every other member who is locked 
into this system. That is the drift of where we are headed. 

Now, when the FBI comes to this committee end explains the 
problems they have on recording dispositions I think that raises 
again the question of uniformity and I think if the FBI does not 
keep as good records, and I think it is only because of manpower, I 
think it is mainly because of manpower problems as I read 
Mr. Santarelli's testimony, then I still see the potential for the same 
kinds of problems. 

Because the FBI, if they don't have convictions and if thej^ feel 
they will not be governed b}^ the regulations in dissemination they 
will still be disseminating just arrests. 

Mr. Keating. There is a lot of merit to your position on restricting 
the dissemination to convictions. It seems to me that the FBI has to 
coordinate its activities with all State and municipal organizations 
in order for this whole process to work; I agree with your comment. 
Is there anything that you feel a subcommittee such as this can do 
effectively to procure that result? 

Mr. Cohen. I think the focus of this subcommittee in that area 
should be on, I don't know really the scope of what your authority 
would be, but I think you have to focus on requiring the FBI to 
seek out the disposition records and that perhaps there would be some 
sanctions against those departments who do not pro\'ide regularly 
disposition information that those other local departments would then 
not get the FBI information, something like that, if it would have to 
come to that. 

I think it is too important an issue to be treated solely by saying we 
just don't have the manpower. 

Now I agree completely with that comment as to what I think is the 
less important issue where the FBI says we don't have the manpower to 
eradicate all of our arrests over 2 years. I think the real problem there 
is if the FBI were required at this point in time to eradicate all ar- 
rests over 2 years the FBI would almost have to completely eradicate 
their entire information system for the past 50 years or so. But since 



116 

they are, essentially, keeping arrests, only they would come to the 
point of having to program a computer so that everything that is in 
there over 2 years old is wiped out, as they get into increased compu- 
terization, and I think that would be a burden they should not have 
placed on them. 

I think they should focus on gathering the appropriate information. 
Mr. Keating. In your opinion, and from your experience, do you 
feel that LEAA is serving a valuable function in making these grants 
in the area of computerization of records? 

Mr. Cohen. Yes, I do, I think they are taking the lead in this coun- 
try in that effort. 

Mr. Keating. Now you mentioned earlier that some controversy 
seems to be building around LEAA and its grants and the expenditure 
of funds. I think we are all pretty much aware of that. From your 
personal experience with LEAA and some of the various councils 
that have been formed through the local governments, how do you 
feel about LEAA? 

You brought it up, so I am going to pursue that a little. 
Mr. Cohen. Congressman, I would first state my involvement 
because I think that is important because I am very much involved 
in this area. 

One of my main responsibilities in the District Attorney's office is to 
coordinate on the LEAA grants for our offices on all the councils so 
that I have represented our office on the Regional Planning Council. I 
have attended in the past months many meetings of the Governor's 
Justice Commission, which is the State Planning Agency, and I have 
very close liaison with the regional administrator of the LEAA pro- 
gram in Philadelphia. I think, and I can only speak for Philadelphia, 
that the Philadelphia experience has been a very good one under the 
Law Enforcement Assistance Administration. 

One of the problems which we are facing right now is the failure of 
the Governor's justice commission, the State planning agency, to 
focus on the needs of Philadelphia. 

As the program runs, of course, 75 percent of the action funds which 
come from Washington to Pennsylvania is distributed from the Gover- 
nor's justice commission to the eight regional offices. Pliiladelphia has 
gotten approximately one-third of the total action moneys available 
out of Harrisburg, and I think that is a very appropriate method of 
distributing funds, so that we have gotten in fiscal year 1971 $4.8 mil- 
lion in action funds; in fiscal year 1972 we are to receive $5.6 million 
in action funds. 

The State planning agency, the Governor's justice commission, 
has 12 members on it and not one of those members is from Philadel- 
phia's city government. I think that is wrong. I think that there is 
a focus away from the problems of the big city. We have seen, because 
of this, increased interest from the administration in Wasliington on 
the problems we have in particular in two fields — juvenile gang 
homicides and drug addiction and drug rehabilitation programs. 

_ The problem that Washington faces is that they do not have a sig- 
nificant amount of money compared to what they give out to the 
State planning agencies. But in the overall picture, I would say that 
the money that has gone into Philadelphia has not been wasted. I 
would like to see it more concentrated in the two fields I have men- 
tioned, and not spun into some studies which are being done. In fact, 



117 

to give you an example, a group called the Pennsylvania Law and 
Justice Institute applied for a grant of $150,000 to distribute informa- 
tion on the problem of crime to the public and to other law enforce- 
ment offices, hold seminars and that kind of thing. That was an appli- 
cation for discretionary funds direct to the Governor's justice com- 
mission. The Governor's justice commission had that matter on their 
agenda for consideration at a meeting which was essentially snowed 
out because only 2 of the 11 or so members appeared because it 
Avas the worst snowstorm of the year, and one of the members was the 
attorney general, who indicated that he had been the former, I think, 
chairman of the board of the Law and Justice Institute, and was still 
on the board, and therefore felt he could not vote on the application. 
So, of course, that left one person. They decided to refer that matter 
to the local Philadelphia regional planning council as to whether 
Philadelphia wanted such a program out of State funds. 

The regional planning council voted not to endorse that program 
and sent a message back to Harrisburg that they thought that the 
money could better be spent in the drug area. 

At the most recent meeting of the Governor's justice commission, 
the commission approved that application. 

Now that is the kind of thing that is disturbing to us and we feel 
that reflects a lack of interest and concern in the problems of Phila- 
delphia from the Commission in Harrisburg, but not in Washington. 

Mr. Keating. If I understand j^ou correctly, that would reflect a 
misplaced priority so far as Philadelphia thinking is concerned. 

Mr. Cohen. Yes, sir. 

Mr. Keating. I won't belabor this any longer. I think your testi- 
mony has been excellent. I have a problem with the 2-year section 
as well, but I think your testimony has been very good. 

I yield back the balance of my time, if I have any balance of time. 

Mr. Edwards. Mr. Zeifman. 

Mr. Zeifman. I would like to explore what information may be 
obtained by the arrestee of records from the Philadelphia Police De- 
partment. If prior to his arrest in Philadelphia, the arrestee had been 
arrested in other parts of the LTnited States, for example, the Phila- 
delphia police would obtain an FBI rap sheet when he was arrested 
in Philadelphia, I would assume. That being the case, if he then 
subsequenth^ applies to the Philadelphia police for his arrest record, 
would the Philadelphia police provide him ^-ith the complete record, 
or oiil}^ that portion which consists of his Philadelphia arrests? 

Mr. Cohen. They would provide only the Philadelphia information 
and the Philadelphia PoHce Department does not routinely check 
with the FBI for past records. The check is made where it is an instance 
of a serious felony of some kind. The reason for that is basically not to 
overburden the FBI with setting up a routine. We have 93,000 arrests 
in the city of Philadelphia alone each year. Now if we were to routinely, 
in each of those arrests, check with Washington that would impose an 
improper burden, I think, on the FBI. 

Mr. Zeifman. Are the fingerprints and arrest records sent in every 
instance to the FBI? 

Mr. Cohen. Yes. 

Mr. Zeifman. Doesn't that automaticallv get a response from the 
FBI if there is an FBI rap sheet? 

Mr. Cohen. No, sir. And that figure of 93,000 is about 43,000 
nonintoxication arrests, so fingerprints are not taken and are not 



118 

sent to Washington where the arrest is for intoxication, which is 
an arrest that the district attorney's office will not prosecute. 

Mr. Edwards. Are you saying that half of the arrests in Phila- 
delphia are for alcohol charges? 

Mr. Cohen. Yes, sir. That is a custodial arrest only, they are not 
brought before a magistrate or anybody, they are held until they are 
able to walk out of the police station in the opinion of the police 
captain, or until somebod}^ comes to pick them up. Most of those, 
that is, not 43,000 separate individuals, most of those individuals 
are arrested many times a year. That is a whole separate problem of 
police time that should be focused on. 

Mr. Zeifman. So there is a piovision in the bill which peimits 
someone to consider any question concerning his arrest to apply only 
to records which can lawfully be disseminated. If the subcommittee 
were to amend the bill so it would eliminate the 2-year automatic 
requirement, what then would be your view concerning the problem 
of the person who had in fact been arrested but the case had been 
nolle prossed. Then would you consider it appropriate for him to 
consider questions concerning his arrests to be limited to arrests 
which led to conviction? 

Mr. Cohen. That is a very difficult question, naturally. I think 
first of all the infoimation which is recorded where the prosecutor 
chooses, and this is really what I am saying in the latter part of my 
testimony, where the prosecutor chooses to place the case into a pre- 
indictment program and then the record is expunged, I think there the 
information is recorded and subsequently expunged that our definitiou 
or the definition of, "Have you been arrested?" should mean "Have 
you ever been arrested and the case has not been expunged?" or 
something like that. As you notice, we take 22 percent of the cases 
which are followed through in prosecution, and we set up a program 
where we will pro\ade for the automatic expungement of those records. 
That puts a lot of discretion in the local prosecutor but I think that 
is where the discretion should lie. But I think in the instance of a 
nolle prosse, which takes place outside of the preindictment probation 
program, say a nolle prosse which occurs on a homicide case or on a 
robbery case, yes, he should have to say, "Yes, I have been arrested." 

Mr. Zeifman. If your view is that perhaps with some exceptions 
employers generally are to have access only to convictions, then con- 
sistent with that view, should not the employers generally be re- 
quired to limit their questions on the employment applications only 
to this? 

Mr. Cohen. I think that is preferable, but I don't see how Congress 
can impose such a stand on private industry. 

Mr. Zeifman. Aside from the question of the congressional author- 
ity, as a matter of policy would you think this should be done? 

Mr. Cohen. Yes, I would prefer that, I think that would be the 
best policy but I don't see how Congress could pass a law that would 
say that hereafter no private employer, not the corner grocery store, 
can inquire as to the arrest record but only the conviction record. 
Perhaps on the theory of interstate commerce you could say this to a 
corporation that deals in interstate commerce and perhaps everbody 
does now, I am not expert enough to focus on that. I think, it is 
desirable. 



119 

Air. Zeifman. Is j^our preindictment probation program confined 
to drug cases only, or would that apply across the board? In other 
words, if a person were arrested on a criminal charge and there was 
no e\ddence of narcotics addiction or a drug problem, are there cir- 
cumstances in which you would consider him to be eligible for pre- 
indictment probation? 

Mr. Cohen. Yes, there are. Even a burglary, a buglary of a busi- 
ness establishment as opposed to a burglary of a home, especially a 
burglary of a home at night, a burglary of a business establishment 
where the business establishment is willing to see the individual 
treated in our preindictment probation program, we have accepted 
a number of cases like that. 

The reason for that is that is probably a drug case. The Philadel- 
phia prisons are routinely now taking urine analyses of all inmates 
who come into the prison and their figures show that somewhere close 
to 70 percent of the people who come into the Pliiladelphia prison 
system have traces of morphine in their urine. So I tliink that where 
you are talking about a burglary, especially, you are talking about a 
narcotics crime. It just so happens that the fellow doesn't have 
narcotics on him at the time and that is probably why he is committing 
burglary. So we treat that, if it is a first offense, and if it is acceptable 
to the injured party, we would treat that in the preindictment pro- 
bation program, but we would look very closely to have more intense 
supervision on that kind of a case than on, say, an individual arrested 
and charged with possession of marihuana as a first offense. I think 
there is a real question in a case like that as to just wdiat you do by way 
of a treatment program for a 19-3'ear-old boy who is caught with 
three marihuana cigarettes. 

Mr. Zeifman. That is all I have. 

Mr. Edwards. Mr. Garrison. 

Mr. Garrison. Am I correct in understanding that in Philadel- 
phia a private employer simply cannot routinely go to the police 
department and ask the police department to obtain for him an FBI 
rap sheet on a prospective employee? ' 

Mr. Cohen. Mr. Garrison, that is what I am told, but I would 
not want to say that categorically. 

Mr. Garrison. You are not aware of any systematic use of FBI 
rap sheets in that fashion? 

Mr. Cohen. Not in that fashion. I am aware of use of FBI rap 
sheets by the Philadelphia Police Department, and there have been 
charges by outside groups of abusive use of that information. But I 
have never heard any complaints about the situation you are describing. 

]Mr. Garrison. Now you mentioned in your testimony that in 
Pennsylvania arrests without convictions may be shown in presentence 
reports, is that correct? 

Mr. Cohen. Oh, yes. 

Mr. Garrison. Now, may the mere fact of arrest without convic- 
tion be sho^\^l in the report, or must the underlying facts concerning 
the arrest, that is, the nature of the offense, what the evidence was, 
and things of that type, be shown? 

Mr. Cohen. No, the mere fact of arrest would be shown and at 
that point it becomes a matter for judicial determination as to what 
weight the judge wants to place on that. 



120 

Mr. Garrison. There is no requirement that the reason for lack of 
conviction be shown, such as the fact that the prosecutor nol-prossed 
because of the death of the complaining witness, or what-have-you? 

Mr. Cohen. No ; there is no requirement. I think that information 
under an ideal system should be available but again it would probably 
have to come from our office, and I suppose once we are computerized 
and once all of our dispositions are computerized we will have codes to 
indicate the reason for the nolle prosse. 

We now have codes to indicate the reasons for all continuances. 
So the computer, once it gets operational, will have that kind of 
information. So the judge eventually could have that information, but 
he doesn't have it now. 

Mr. Garrison. Without committing you to an answer to the 
question. Don't you think that it raises a question of due process to 
allow the mere fact of arrest to be considered by a sentencing judge 
without regard whatsocA^er to the reason for the lack of conviction? 

Mr. Cohen. I think that if a judge uses the mere fact of an arrest 
and nothing else to, say, sentence somebody to a very stiff prison 
term that would be improper on his part. But I think that, first of all, 
we deal in an imperfect world where we don't have all the information 
we would want to have available on everything that happens all the 
time. I think that the record of an arrest has very little probative 
value but I think it still has some value in the sentencing process. 

The T. L. Bailey, case was an example where we, in fact, brought 
to the court the total circumstances behind the prior arrest on the 
homicide charge. I would say that I certainly would hope, and I 
expect, that most judges, at least in Philadelphia, if they see a case of 
aggravated robbery where there has been a couAdction and they must 
sentence and they see above that homicide, discharged, I would think 
that any judge worth his salt, and I would think any defense lawyer 
who is on his toes would make sure that if it is favorable to the defense 
lawyer he would make sure to bring out it was discharged because 
somebody else was subsequently arrested and charged. This is not 
done in the abstract, and there is representation at every sentencing 
hearing and it is for that purpose. 

So I think that the possibility of abuse of the information is present 
but it is very limited and I think the information is important to 
be there. 

Mr. Garrison. So in the T. L. Bailey case the judge, in effect, 
was told that the defendant had confessed to the crime but that 
the confession was rendered inadmissible? 

Mr. Cohen. That is right. He was told that after the jury returned 
the verdict. 

Mr. Garrison. You mentioned in your testimony that in your 
preindictment probation program if there are no subsequent arrests 
during the probationary period the prosecutor may determine that 
the record should be expunged. 

Now, do you mean b}^ that no arrests at all, or no arrests leading 
to conviction? 

Mr. Cohen. No arrests at all. 

Mr. Garrison. So that even if one were arrested and the com- 
plaining witness then a day or two later came in and said, "I am 
sorry, it was a mistake, mistaken identity" 



121 

]Mr. Cohen. No, at that point that would be treated as no arrest. 
But say somebody is phiced in the preindictment probation program, 
say last August, and he is placed in it for 1 year and this June he is 
arrested, we would not in August wipe liis record clean, we would 
hold the first charge in abeyance pending the second charge, or we 
would possibly reinstate, which we can do under the procedures, 
the first charge and he would go to trial then on two charges. That 
would be a matter of prosecutor's discretion. That is the reason for 
that. But if he is put in the preindictment probation program in 
August, arrested again in June, and then the second arrest results 
in a not guilty verdict in October, a year and 2 months later, he would 
have the preindictment probation case wiped from his record but the 
second case would remain on the record because that one went to trial. 
However, we have people in the preindictment probation program on 
two, three, I don't know about four, but at least some of them are on 
three separate charges, if they are all drug charges especially. 
Depending on the reports we would get from our people in the treat- 
ment program as to what he is doing to deal with this problem, that 
is the main thrust of the program, the treatment. 

Air. Garrison. The distinction which you have made between 
disseminating arrest data to private employers and disseminating 
it to other law enforcement agencies appears to be founded on the 
generalization, let's say, that in the hands of private employers arrest 
data is not likely to be evaluated before being given prejudicial effect 
to the apphcant for a job, whereas in the hands of law enforcement 
agencies arrest data is likeh^ to be evaluated before any prejudicial 
effect to, say, an investigated person would arise. Is that a fair state- 
ment of the generalization? 

Mr. Cohen. I would say "more likeh^" 

Mr. Garrison. Why do j^ou feel that in the hands of private em- 
ployers the likehhood of evaluation is less? I don't mean to suggest 
by the c^uestion a disagreement with your conclusion, but are you 
basing that conclusion on some type of study that has been conducted 
in the Philadelphia area, or on general common knowledge, or how 
would you describe the basis for j^our conclusion? 

Mr. Cohen. I think it is similar to the law school that has a cutoff 
point on the law aptitude tests, it is an easy stand and it is just used 
and I think it is an inappropriate stand. I think that is the reason. 
Where you have two applicants for a certain position and, say they 
are relatively equal, and one has an arrest and the other one doesn't, 
it just is a natural trend to do that, I think. 

Mr. Garrison. What about those employers who do not attempt to 
obtain the arrest and conviction data until after the person has been 
provisional!}^ hired, and therefore the person is an employee when the 
arrest check is made? Because the indi\ndual concerned is an employee 
at that time, the.y don't just summarily fire the person; they would 
discuss the matter, reveal the arrest check. Do you think it is an in- 
valid use of such data to allow a bank, for example, to know that an 
individual has been arrested for embezzlement and let the bank officials 
check out with the employee what the circumstances were? 

Mr. Cohen. I think it is one thing for them to ask an employee, and 
if the employee gives the answer, 'T have been arrested for embezzle- 
ment," to a question they can still ask, I think it is one thing for them 
to get the circumstances from him and check out facts. Certainly he 



122 

can give facts which would permit them to check it out — "Embezzle- 
ment where?" "Where I used to work" — and they can check with that 
€mplo3^er. 

It is one thing to do it between one employer and another and I 
think it is another to do it where the information comes with the 
stamp of authority and the api)rovai of a law enforcement agency. 
I think there is just an aura on that kind of information which gives 
it more weight than it should have, and I think that is where the 
abuse comes in. 

Now, the law enforcement agency uses the information, just to give 
you the example that came first to mind when I discussed this with 
one of the people in our computer records department in the police 
department — the first example they gave of a case where the police 
would use arrest information that could lead somabody to be ar- 
rested again would be in a situation of loitering and prowling, where 
somebody is picked up, say, off the sidewalk or off the beaten track 
in a certain neghborhood, but not really doing anything. They 
would inquire of the records, does he have a record. If it comes back 
no record, he would be released; if it comes back that he has other 
arrests or convictions or cases pending for burglary, then that would 
be something that could place it over the borderline and result in an 
arrest in that situation. 

I think certainly that is something that could be debated but I 
think that is the kind of appropriate use that law enforcement offi- 
cials would make that can very possibly benefit the individual in- 
volved. But I can't think of appro])riate uses that w^ould benefit the 
individual involved where it is a private emplo^^ment situation. I 
think of the slogan used b}- — I think first by one of the drug rehabili- 
tation centers in New York, "Tomorrow is the first day of the rest 
of your life," and I think that there is a point where somebody is 
entitled not to have every parcel of information about his past follow 
him into his future indiscriminantly. 

Mr. Garrison. Don't 3^ou think that if the police on a particular 
night were to find an individual prowling, or to be otherwise in sus- 
picious circumstances, and they check and are somehow able quickly 
to determine that 10 years previously he had been arrested for assault, 
even though, in fact, the assault charge may have been dropped the 
very next day after being placed because of mistaken identity, the 
mere fact of that assault arrest, even though it occurred several years 
ago, would probabl)' be sufficient to tip the scales in the mind of the 
officer learning that fact? 

Mr. Cohen. I think that could happen in the minds of some 
officers and not others. Yes, I think it could happen. I think that is 
where the more detached view of the prosecutor comes in. We would 
not routinely prosecute a case like that. 

Mr. Garrison. But the individual is nonetheless arrested at that 
particular hour of the night. And yet by hypothesis there really was no 
probative value to that earlier arrest at all. 

Mr. Cohen. Correct. But there may be good cause to make this 
arrest and that previous arrest will not be used in evidence against 
him at a trial on a subsequent arrest. 

Mr. Garrison. Except that his detention, even though it might be 
just overnight, where the difference between his being or not being 
detained was police knowledge of an arrest 10 years ago which turned 



123 

out to be a totallj^ unfounded arrest, meant something to the arrested 
person: a night in jail. 

Air. Cohen. Certainly it does. 

]Mr. Garrison. Don't you think that raises a due process question? 

Mr. Cohen. I don't think so, I think that is an example of law en- 
forcement officers using what information they have, and using it to 
the best of their ability. 

Mr. Garrison. Thank you. 

Mr. Edwards. Mr. Wiggins. 

Mr. Wiggins. In determining reasonable cause for arrest, is it 
legally appropriate to consider a prior arrest not resulting in a 
conviction? 

Mr. Cohen. In what context, sir? 

Mt. Wiggins. Let's say the issue is whether or not there is probable 
cause to make an arrest, let's say the issue arises in the context of the 
probable cause to issue a warrant. I realize that is a judicial determi- 
nation, but is there any legal inhibition against exposing the judge to 
arrest information which the person seeking the warrant deems to be 
probative although those arrests did not result in a conviction? Is 
that a proper legal use of an arrest record? 

Mr. Cohen. Before the judge who is asked to sign a warrant of 
arrest only? 

Mr. Wiggins. Yes. 

Mr. Cohen. That is not done. I have never seen it done and I have 
never seen that kind of information on a warrant. I don't know whether 
it is not done because it is illegal or just procedure. I think that it is 
probably a violation of due process to bring that information to the 
attention of the magistrate on the general theory that the judicial 
officer does not know of the prior arrest or conviction background of 
the individual until the point of sentencing. 

Mr. Wiggins. Let's go to this hypothetical illustration: let's suppose 
at trial the issue is the admissibility of evidence. The charge is that it 
has been illegally seized, and the admissibility and legality of the seiz- 
ure turns upon the legality of the arrest: is it appropriate at that'point 
for the prosecutor to present evidence of such information, developed 
thi'ough testimony, as the police officers had, perhaps from a reUable 
inforinant or whatever, and include within that the fact that they 
had sought out a rap sheet on the suspect which showed prior arrests 
involving the same type of subject matter as that now appearing before 
the court? Is that a lawful use of an arrest record in court? 

Mr. Cohen. What happens at that kind of a proceeding— and 1 
think there probably is a line that is dra^\Ti between introducing the 
record and introducing information that it really almost is the same 
as the record — it is appropriate for the police officer to be questioned 
on his knowledge of the particular defendant, his knowledge as 
opposed to the knowledge of the poUce department, and it is appropri- 
ate for him to say, if it is true, that: "I saw this individual standing 
on the corner and because he is known to me as a drug user I watched 
him and then saw him go up to somebody and saw something, a white 
paper packet, change hands and then at that point made an arrest 
and seized the packet, which turned out to be heroin." 

Mr. W'iggins. Would it be appropriate for him to say he had 
arrested the man previously for possession of drugs? 

Mr. Cohen. That is appropriate, that would be the knowledge 
of the officer. To take that one btep further, if the officer sees a 

78-242—72 9 



124 

situation, say, which he suspects is somebod}'' who is deaUng in 
drugs inside a building, a private home, and he does the surveilhince 
and finds that 30 people enter and leave this private home within a 
couple of hours, and then he gets information when he stops one of 
those people which he may know, if he ^s a narcotics officer, and 
that person says that narcotics are being sold there, and then he 
can go back to the police department and inquire about the record of 
that individual and he gets a reading back that person has four prior 
arrests on narcotics charges, it would be api)ropriate for him to 
bring that to the attention of the judge on the hearing on the motion 
to supress evidence, but not on a hearing at an actual trial, but only 
where it is his personal knowledge. 

So if he checks the record and finds out there is an arrest record, 
then that would be brought to the attention of the judge. But the 
prosecutor in the court proceeding on the motion to suppress evidence 
would not introduce the record itself into evidence before the judge 
because the whole question of i:)robable cause revolves around what is 
in the mind of the arresting officer. 

Mr. Wiggins. That answers my question. 

Mr. Joseph. Under the preindictment probation program in 
Philadelphia, once an individual has successfull}^ completed the pro- 
gram do 3^ou intend to ask the FBI to remove his fipgerprint card 
from the files? 

Mr. Cohen. Yes, we do. 

Mr. Joseph. I take it from an answer to an earlier question that 
you would allow that individual to respond in the negative to a 
question: "Have you ever been arrested?" He could say: "No, I have 
never been arrested"; is that correct? 

Mr. Cohen Yes. 

Mr. Joseph. If that individual were later a witness, for example, 
and stated that he had never been arrested, what do you think gives 
him the authority to say: "I have never been arrested"? Would he 
perjure himself if he would deny that he had been arrested? 

Mr. Cohen. No, because what I am saying is that the definition of 
arrest should really in this bill be expanded to include that, so that 
Avhen somebody says, "I have never been arrested," there should be 
a section in the bill that would sav what an arrest means — I don't 
know how you would word it exactly. I want to add that, whenever 
there is an expungement or order from our court on a record, the 
Philadelphia police mil expunge that record and write to the IBI to 
send back the fingerprint card, and the I'BI will do that in all instances. 
The State police do not do that in Pennsylvania, parenthetically. 

Mr. Joseph. Without the bill we are considering, what gives that 
individual the authorit}^ if he is a witness, to saj^ "I have never been 
arrested"? The arrest is a fact even though it has later been ex])unged. 

Mr. Cohen. I am not sure, but I think that right now, well, right 
now the only way that an individual can have a record expunged, 
would be the court order or by our preindictment probation program. 
Now within the context of the ])reindictment ])robation program 
there is a rule of the Supreme Court of Pennsylvania that governs the 
procedure and in that rule is where this proviso is made, and in the 
expungement order this tyi)e of proviso is made so that it becomes 
a judicial order that this record does not exist and that the individual 



125 

does not have to say that it does exist, that is the authority, there is 
no statute, though. That may not be the authority in other States. 

jMr. Joseph. Thank you, Mr. Chairman. 

Mr. Garrison. Do bail-setting magistrates in Philadelphia use 
arrest data in makmg decisions on bail — do they use arrest records? 

Mr. Cohen. Yes, they have the record of arrest. 

Mr. Garrison. Do a^ou kno\v ■whether that commonly includes 
either FBI data which may not include disposition or local data which 
does not include disposition? 

Mr. Cohen. It would include local data but not FBI. It could in- 
clude FBI data if the FBI data was recpested prior to the instant 
arrest. In other words, when somebody is arrested and brought before 
a committing magistrate for an arraignment there will be an extract 
of his record in front of that magistrate and that record will be current 
but will not reflect an mquiry on that day to the FBI for information, 
but if, sa3^, he has a prior arrest 2 years before and at that time an 
inquiiy was made to the FBI about his record and the FBI sent back 
information about arrests in St. Louis and New York, then that 
record would be there. It would be without indicating a disposition 
which could have been not guilty. 

Mr. Edwards. Thank you very much, Mr. Cohen. 

Mr. Cohen. Thank you. 

Mr. Edwards. Our second ^^'itness today is the executive director 
of the International Conference of Police Associations, ^Ir. Robert D. 
Gordon, who has a ^\ide experience for many years in police work, 
especialh' at the local level. 

I presume j^ou are accompanied hj Mr. James Van Norman, 
attorney for the International Conference of Police Associations. 

The committee welcomes 3'ou both, and j^ou may proceed with 
your testimon}". 

STATEMENT OF ROBERT D. GORDON, EXECUTIVE DIRECTOR, 
INTERNATIONAL CONFERENCE OF POLICE ASSOCIATIONS, AC- 
COMPANIED BY JAMES F. VAN NORMAN, ATTORNEY, INTERNA- 
TIONAL CONFERENCE OF POLICE ASSOCIATIONS, WASHINGTON, 
D.C. 

Mr. Gordon. Thank you, Mr. Chairman, members of the com- 
mittee. 

For the record, my name is Robert Gordon. I am the executive 
director of the International Conference of Pohce Associations, rep- 
resenting 157 police departments in the United States and Canada, 
A\ith a total membershij) of 153,000 members. 

I first would like to thank the chairman and the committee for the 
opportunity to present our position here this morning. 

statement of position 

The legislation exceeds its goals to provide for the dissemination 
and use of criminal arrest records in a manner that insures their 
security and privac}^ to the detriment of the public interest in general 
and hampers efi'ective law enforcement in particular. The legislation 
is not recommended for passage. 



12(5 



SYNOPSIS OF BILL 



The bill was introduced in the House of Representatives b}' Mr. 
Edwards of California to amend title 28 from the United States Code 
"to provide for the dissemination and use of criminal arrest records 
in a manner that insures their security and privacy." 

The bill provides for the insertion in title 28 of a new chapter 
entitled "chapter 177, Dissemination of Arrest Records." The bill 
places various restrictions upon officers and employees of the United 
States or of an}' federally assisted law enforcement agency regarding 
dissemination in any manner of any criminal arrest record which the 
bill defines as records and related data (including fingerprints), 
compiled by law enforcement agencies for the purpose of identifying 
criminal offenders and alleged offenders and maintaining as to such 
persons summaries of arrests and the nature antl disposition of criminal 
charges arising out of such arrest. Such officers or employees are 
prohibited from disseminating such records to anyone other than 
another said officer or employee of such a law enforcement agency. 
The officers are prohibited from disseminating to any person criminal 
arrest records relating to aiTests having occurred more than 2 ^^ears 
prior to such dissemination and concerning those where no prosecution 
is pending, relating to arrests where the prosecuting attorney re- 
sponsible, agrees no prosecution is warranted and that no criminal 
arrest record should be kept and relating to those which are expunged 
or prohibited from being maintained under State law or by court 
order. 

The bill is also made applicable to other officers and employees of 
any law enforcement agency regarding matters received from any 
officer or employee of the United States or of a federally assisted law 
enforcement agency. 

The foregoing restrictions are not to applj^ to a criminal arrest record 
concerning persons who have been convicted of at least one Federal or 
State felony and the bill does allow for such use in accordance with a 
court order issued under the act. The bill insures every person of the 
right to inspect any criminal arrest record concerning him, maintained 
by any officer or employee of the United States or of a federally assisted 
law enforcement agency and mandates that upon such request, such 
officer or employee must disclose to that person the name of all persons 
to whom such officer or emploA^ee transmitted or communicated such 
arrest record during the 6-month period preceding the request. It 
allows people to petition any U.S. district court to issue an order 
enjoining any officer, employee or agency from violating this chapter 
or from maintaining in a criminal arrest record information which is 
incorrect. 

Such litigation will be available to any person at any time if he has 
reason to believe that a criminal record will be maintained or dis- 
seminated by said officials in violation of this chapter. 

The bill provides for court orders allowing dissemination, mainte- 
nance or use in certain cases when the officials can show by sub- 
stantial and convincing evidence that there is a compelling public 
interest in such dissemination, maintenance, or use. However, such an 
ap]3lication would necessitate a Amtten oath or affirmation and shall 
include the identity of the officer making the application and the 
officer authorizing the application. A full statement of facts and cir- 



127 

ciimstances and other additional testimony in support of the appUca- 
tion. Violations of this provision can be punished as contempt. An 
individual, in responding to any question concerning an arrest, is 
permitted to consider the question appUcable only to a record which 
may be lawfully disseminated under this provision and no person shall 
be required to waive rights under this provision. 

The bill provides a civil cause of action against persons responsible 
for such violations and allows for damages and attorney's fees and 
other litigation costs as well as exemplary damages in the discretion 
of the court and allows for fines not more than $1,000 or imprisonment 
for not more than 1 year, or both, for violations of the act. 

STATEMENT OF POSITION 

The restrictions implemented by this legislation are cumbersome, 
unreahstic and hamper effective law enforcement. The restrictions 
are too broad and general and excessive Avdth regards to rights which 
individuals have under Federal and State due process requirements 
and the restrictions merely provide obstacles in the effective enforce- 
ment of the law. 

The restrictions and added penalties vvhich are provided for are 
an unnecessary burden which is cast upon law enforcement officials. 
The use and dissemination of such records have always effectively 
been limited by the discretion, not only of the individual police 
officers involved, but by the applicable State, county, or municipal 
laws involved as well as the internal regulations of the police depart- 
ments or law enforcement agencies involved. Whereas, these restric- 
tions and penalties are imposed on the law enforcement officials, 
there are no restrictions provided regarding individuals bringing suits 
under this new provision. A prerequisite to any suit would be merel}" a 
belief that a record vvdll be maintained or disseminated in violation of 
the act. Such a lawsuit would be available at an}^ time or at any 
stage to any individuals whose interest it would be to harass police 
and police procedures. On the other hand, the procedure avaihible to 
enforcement officials for apphcation to the court is completely biased 
in favor of the individual mth the criminal record. It is arbitrary and 
uni'eahstic in such an application to require the disclosure of facts 
and chcumstances as well as the identifies of the poHce officials 
involved. Furthermore, the burden of proof which is necessitated on 
the part of the poHce officials under this bill, is completely burden- 
some, time consuming, and costl}^ to the taxpayers as well as the 
enforcement officials involved and the court system in general. 

A blatant example of how unfair this bill is the fact that there is no 
redress available for the police who are involved in a suit or case 
brought by an individual which is completely unfounded, or in a 
situation where an individual's suit against the police officials for 
violation of this act is denied. 

Furthermore, this legislation would definitely be balanced in favor 
of the individual v\dth the criminal record to the detriment of the 
public in general under the provision regarding questions concerning 
arrest. This provision would be against public interest because it 
hurts only those innocent emplov^ers or other segments of the com- 
munity who have a right to know of a person's criminal background 
and it unfairly favors those with sometliing to hide. 



128 

Moreover, the penalties which this bill seeks to impose are in 
contravention to what this bill is seeking to prevent; that is, it will 
impose criminal and financial sanctions on law enforcement ofRcials 
who are merel}^ tidying to eflfectively enforce the laws and protect the 
society. This would be done under the guise of protecting people who 
either rightly or wTongly have previously been involved criminally 
■\\dth law enforcement agencies. 

Furthermore, the criteria set forth defining criminal arrest record 
and including even those areas related to the nature and disposition 
of the charges, are completel}^ too general and vague. There is abso- 
lutely no regard given whatsoever to the public or society's rights 
regarding knowledge of a general nature regarding criminal law 
enforcement. A certain amount of dissemination, maintenance, and 
use of such records is necessary not only for effective law enforcement, 
but in a democratic society. 

CONCLUSION 

The scope of this legislation far exceeds any due process requirements 
and hampers the public interest and hurts drastically the effective- 
ness of law inforcement agencies. We recommend that the bill not 
be passed. 

Mr. Edwards. Thank 3^ou very much, Mr. Gordon. 

Mr. Gordon, both 3'ou and Mr. Van Norman were here when 
Mr. Cohen from Philadelphia testified. His testimony seemed to me 
to indicate that Philadelphia has already enacted or is following a 
number of the procedures advocated in this bill and apparently 
without great detriment to the law enforcement activities of 
Philadelphia. 

Do you disagree with Mr. Cohen's testimony with regard to Phil- 
adelphia practices? 

Mr. Van Norman. Not at all, sir. 

If I may, I do not feel that this bill, the way it is written, is fol- 
lowing the i^rocediu'e that is involved in Philadeli)hia. I am counsel 
in New York and we have several statutes that i)rotect the dissemi- 
nation of material as well as protect an individual who is a first 
offender, the kind of person I think possibly this legishition is out 
seeking to protect. 

Just recently, in September of 1971, we passed legislation which 
requires that in areas of a misdemeanor a person is to be given the 
opportunity, if he has no prior record, of having 1 year held in 
abeyance, the whole case is held in abe^yance, and if nothing happens 
during the course of that year which would indicate to the court a 
desire to go further, the case is completely dismissed against an 
individual. I don't see that in this particular legislation, but that is 
the purpose. 

Mr. Edwards. This legislation is designed primarily to slow 
down the wholesale dissemination of records throughout the country 
and substitute therefor conviction records. Would you agree with that 
general premise? 

Mr. Van Norman. Absolutely, absolutely. 

Mr. Edwards. The subcommittee has received a number of aver- 
tisements by various jmvate detective agencies which advertise 
that these agencies will check police records as a part of their services. 
Have you seen this kind of advertisement? 



129 

Mr. Gordon. No, sir, I have not personally. From Nassau County, 
N.Y., where I originally lived, no one but a police officer can obtain 
these records. 

Mr. Edwards. A private detective agenc}' can't come in and look 
at 3'our records? 

Mr. Gordon. No, sir. 

]Mr. Edwards. What about financial institutions doing applicant 
investigations? 

Mr. Gordon. No, sir. These are not open to anyone. 

Mr. Edwards. Well, the financial institutions have access through 
the FBI. 

Mr. Gordon. But the}'" have to go through the law enforcement 
agency. 

Mr, Edwards. Do 3'ou think they ought to get it for nothing 
or do you think they should pa}' a fee? 

Mr. Gordon. I think they ought to pay for it. 

]Mr. Edwards. This committee is always interested in the state of 
the U.S. budget, so we might consider that. 

I have no further questions at this moment. 

Mr. Wiggins. 

Mr. W^iGGiNS. Mr. Gordon, your resume indicates considerable 
experience as a working police officer. Would you tell the committee 
some of the proper uses to which a police department puts arrest 
records? 

Mr. Gordon. You would mean in the norm of my everyday 
working? 

Mr. Wiggins. Yes, sir. 

Mr. Gordon. The gentleman thaX preceded me here brought a 
case of a man walking down the street at 5 o'clock in the morning. 
I may as a police officer pull liim over and ask him what he is doing in 
the neighborhood if he doesn't look familiar because I come from a 
small community and we onl}-^ have 42,000 population. So it would not 
apph^ basically to a large metropolitan city. If this gentleman gave 
me a fau'h' good account of himself in many instances he would be 
on his way. However, if he was carrying a box of tools at 4 o'clock in 
the morning, and he looked suspicious and I asked him his name and 
address and he provided this to me and I called headquarters and ran 
a background check and found out this man had two or tlu'ee or 
four prior burglary arrests, I would then proceed to take him in to 
the police station. 

Mr. Wiggins. Normalh', would the records made available to joii 
in such a call indicate dispositions or simpl}- arrests? 

Mr. Gordon. It all depends, Mr. Wiggins, what time of the night 
I would call. Most of the police departments on the night tours don't 
have as many people as during the day, so it would basically give you a 
fast rundown of what he was arrested for, we call it a pink sheet, 
they don't have the disposition of cases on the pink sheet. 

^>Ir. Wiggins. To what other police uses are arrest records normally 
put? 

Mr. Gordon. I would venture to say that would be about the 
only thing we on the street would use it for, to determine the type of 
person you are dealing with out on the street as to Avhether you A\'ould 
bring liim in or not. 



130 

Mr. Wiggins. Then, as I understand it, it is considered by a police 
officer, along with other facts, in determining whether there is a 
])robable cause for making an arrest? 

Mr. Gordon. Yes, sir. 

Mr. Wiggins. How current are the arrest records in the department 
in which you work? 

Let me tell you that what I am trying to get at here is whether or 
not dispositions can be made sufficiently current to be useful. We have 
prior testimon}- here that it takes 6 months to get dispositions added 
to the records. Is there any effort in your department to get them 
added to the records at all? 

Mr. Gordon. It is universal thi'oughout the United States, our 
backlog is so far back that it sometimes takes us a year to get a dis- 
position, a good year, because of the help and the jammed cases. 

Mr. Wiggins. In the Long Island area is there a program now 
underway to computerize the information that goes into an. arrest 
record? 

Mr. Gordon. Yes, sir; I believe the Nassau County Police Depart- 
ment is currently investigating this type of operation. 

Mr. Wiggins. Is that an LEAA funded activity? 

Mr. Gordon. Yes, sir; I believe so, as far as I know. 

Mr. Wiggins. You indicate in your ])repared testimony that the 
bill tends to be biased in favor of individuals with criminal records, 
and apparently biased against police officers in attempting to enforce 
the law. Do you have any suggestions to make to the committee on 
how we can strike a better balance between the competing interests? 

Mr. Gordon. I believe if we look into the area of what tj'pe of 
people we are talking about I would say if the gentleman had a prior 
arrest record of molesting children, and he wanted to go into the 
employee of a school board as a custodian, we have had several indi- 
cations in Long Island that hits the papers where there was a school- 
bus driver charged with the transportation of 30 to 40 children a day 
where he had molested about eight different children on eight different 
occasions, and he did have a prior arrest record of molesting children. 
I believe this bill would protect a man like that from people that 
would hire this man knowing that he has this record. 

Mr. Wiggins. In your county that information would not be di- 
vulged, I take it, since you would not release that information to a 
school official who sought it to determine whether or not a person 
should be hired as a busdriver. 

Mr. Van Norman. I think \\'hat 3'ou would almost have to do 
Congressman, is lay out those areas where this information would be 
available beyond law enforcement areas, such as you do in your 
Federal legislation concerning banks and other financial institutions. 
You would have to say to these areas it should be made available to 
all other areas not to be available and then let the individuals who 
feel they are entitled to this information make application to this 
committee and sa}^ we should be included, or we should not be included. 

I think that is the way of balancing the factors, Mr. Congressman. 

In relation to what Mr. Gordon said concerning an individual, I was 
involved in a case which I cannot mention the part}^, but he had two 
prior arrests for molesting children. 

In the case in which I was involved, he was finally arrested and 
found guilty of the crime. This was over a span of 10 years. 



131 

Now your pro^asion which you have indicated you don't Hke that 
would allow expunging the record after 2 years would seriously affect 
an emplo3'er, sa}', in the school district; would seriously affect the 
police officer in the application of his duty to watch an individual with 
such a background as this. 

Mr, Wiggins. Also, in your testimony you indicate that the bias in 
favor of the person arrested is evidenced by the provision which 
authorizes a suit by him, but 3'ou state that it is a blatant example of 
being unfair to the police officer since there is no redress available 
to him. 

What kind of redress do you think ought to be available to a police 
officers? I am referring to the bottom of page 4 of your testimon}'. 

INIr. Van Norman. The reason this is m here is because in Nassau 
County, as 3'ou probably are aware, there was a case brought by a 
criminal after a bank robbery by the name of Outlaw v. Police Officials, 
statmg that the police officials hj the use of their revolver had violated 
his civil rights in a chase across the county. It took almost a year 
and a half for the police officials in the village of Hempstead to finally 
be \Tndicated by the Federal courts, saying that the action which he 
had carried on was proper in arresting this particular bank robber. 

Now, Federal funds were used by this bank robber, Mr. Outlaw, by 
the use of a federally appointed legal defender for him smce he could 
not afford counsel to prosecute the police department, and the in- 
dividual involved. However — of course, it was comical at the time — 
when the case was concluded, the question was, well, if we sue him 
for the damage that he has done to us as individuals, where would we 
collect the monej', from his welfare check? 

This in essence, is what it came down to. I think your pro\yision here 
which allows him to sue the police department for allegedly disseininat- 
ing this information improperly and it is found that the suit is not 
proper, they should have some area individual to go to to collect the 
necessary counsel fees wdiich are required to be paid in this case, or 
whatever damages the court would find was satisfactory. 

Mr. Wiggins. I take it that the only real damage that a j^olice 
officer or a police department would suffer would be the cost of the 
defense against such a charge, and vaj recollection of the statute before 
us is that attorneys' fees maj' be awiirded to either partv. 

Mr. Van Norman. Possibly we misread it, Mr. Wiggins. 

Mr. Wiggins. Perhaps you are right, too, I am not positive that 
that is certain. But in any event, if it is limited only to a person who 
brings an action against a police officer, would it be your recommenda- 
tion Ihat it should be made operational at the discretion of the court 
to either party to the litigation? 

Mr. Gordon. Yes, sir. 

Mr, Wiggins. In the relatively small community of — Freeport, 
is it? 

Mr. Gordon. Yes, sir. 

Mr. Wiggins. Is there any procedure, any formahzed procedure 
for an individual to correct his arrest record? 

Mr. Gordon. Yes, sir. It is under the county court. If a gentleman 
is arrested and found to be innocent, he makes apphcation to the Nas- 
sau County court and the records, photographs, everything connected 
with the case is expunged by the court order. 

Mr. Wiggins. Including the pohce file? 



132 

Mr. Gordon. Yes, sir; every record pertaining to the case. 

Mr. Wiggins. Is that done administratively if a person asks that 
it be done, or must he file a lawsuit? 

Mr. Gordon. He must go to an attorney and the attorney makes a 
request. 

Mr. Van Norman. It can be done either way. It can be done ad- 
ministratively, but if there is some reason the police refuse, then it 
must be done through the court system. 

Mr. Wiggins. Let me see if I understand. If a person is arrested 
and the arrest results in a trial at which he is found not guilty, the 
record is expunged, or can be expunged. If a person is arrested and no 
criminal complaint is issued or no grand jury indictment ensues, the 
record remains? 

]\Ir. Van Norman. It remains unless he makes application either 
to the court or administratively to have the record expunged. In both 
cases he must make application, it is not an automatic thing. The only 
records that are expunged automatically are the ones previously stated, 
the ACOD and records of youths up to the age of 18 years of age. 

Mr. Wiggins. Is it possible in the State of New York, then, for 
every arrest record which does not result in a conviction to be 
expunged? 

Mr. Van Norman. Yes, sir. 

Mr. Wiggins. Is that your understanding? 

Mr. Gordon. Yes, sir. 

Mr. Wiggins. Is that widely used? 

Mr. Van Norman. Quite frankly, I don't think so. 

Mr. Wiggins. I believe that it would probably be true that the 
number of arrests which result in convictions is a relatively small 
percentage of the total arrests; that would be typical across the coun- 
try and, I take it, typical in your jurisdiction. 

I have no further questions. 

Mr. Edwards. Mr. Zeifman. 

Mr. Zeifman. The subcommittee has had testimony previously 
from Dr. Gallat from New York. The provisions that you referred to 
in the New York law, or course, are not common to all of the States. 
I gather that your association is a nationwide association, is that 
correct? 

Mr. Gordon. International, sir, including Canada. 

Mr. Zeifman. Does your association support legislation in all of 
the other States? 

Mr. Van Norman. I would saj^ absolutely yes. 

Mr. Zeifman. Have you done any lobbying for that type of legis- 
lation in any other States? 

Mr. Van Norman. Thus far, no. 

Mr. Gordon. For the record, I have just taken over the position 
January 2, I just moved to Washington. I am only here 13 weeks. 
We have many plans in that area on the national level legislation. 

Mr. Van Norman. Our thrust right now is for a policemen's bill 
of rights, not a criminal bill of rights. 

Air. Zeifman. If a private detective organization advertises that 
it has access to criminal justice information froiu the police and such 
access would be a violation of a State law, in your view should the 
dissemination of that advertising within that jurisdiction be made a 
crime, if it is not already a crime? 



133 

Air. Van Norman. Absolutely. I would believe that the licensing 
bureau of each State should be in control of that. We give out no 
information, we do not represent any private detective agencies. Our 
association represents bona fide full-time law enforcement police 
departments, we have no security guards or anything in that area 
whatsoever. 

Mr. Zeifman. In the past in New York State I believe there were 
some prosecutions. 

Air. Van Norman. Very recently there have been some prosecu- 
tions on that arising out of the citv of New York. 

Mr. Zeifman. And I would assume that vour association would 
support the prosecution of those? 

Mr. Gordon. Yes, sir, absolutel}^. 

Air. Van Norman. Yes. 

Air. Zeifman. That is all, thank you. 

Air. Edwards. The Judiciary Committee is really very interested 
in the welfare of all of the police organizations and, of course, of 
officers throughout the United States. We wrote and enacted the 
LEAA bill which we think goes much to assist police in their work 
and we really have their welfare very much in mind. 

Air. Van Norman. There is no question about that. 

Air. Edwards. Air. Garrison. 

Air. Garrison. What is the name that you used to describe the 
sheet listing arrests? 

Air. Gordon. The pink sheet. 

Air. Garrison. Is the pink sheet also used in presenting evidence 
before the magistrate in the setting of bail? 

Air. Gordon. Yes, sir. 

Air. Garrison. That is all I have, thank you. 

Air. Van Norman. Could I give you an answer on that? 

As you are well aware, there must be counsel present at each stage 
of the proceeding. In New York we have two options if the judge is 
going to use the sheet in determining bail; we can remain moot on the 
question and not say a word or we can actually explain away the vari- 
ous items. He will show us the sheet on an arraignment or for purpose 
of setting bail. If we \Adsh to explain it awaj' in each and every instance, 
he will not keep that sheet away from us. So if there are five arrests 
and he does not know the dispositions of them, we can just sit there and 
say the disjiosition on all \\w\e been dismissed. 

Air. Garrison. Ai'e there cases in which an FBI ra]) sheet may be 
presented to the magistrate in setting bail either initially or, perhaps, 
if the bail is contested and taken to another court, or sonaething like 
that — at some point a judge or a magistrate setting bail is shown an 
FBI rap sheet in addition to whatever the local pink sheet might 
show? Doesn't that happen? 

Air. Van Norman. That could happen, depending upon the back- 
ground of the individual whether or not one would be available. In 
addition, we have in the State of New York what is known as a pre- 
parole risk report where a man is assigned to the case from the proba- 
tion department, and in the period of anywhere between 2 days and 5 
days he must come back to the court and present to the judge all the 
factors that he knows concerning whether a man can be released on 
bail, lessening the bail that has been set, or, in fact, no bail was set. And 
we have had instances where the bail mav have been set at $25,000, 



134 

and after a preparole risk report the bail was reduced to $2,000 or 
$1,500 based on all the factors: his community involvement, his 
involvement \\'ith the police, all the arrests that he had. All factors are 
in that report which is available to counsel upon recpiest of the judge, 
and ma}^ be answered by counsel prior to the application of bail. 

A tremendous effort has been made of late to tr}^ to get people out 
on bail or out with no bail through this particular })rocedure. 

Mr. Gordon. I might add that in the 20 3'ears that I served as a 
police officer, and I would venture to say I have appeared in court on 
many arraignments, thi"ee or four or five hundred times, 1 have never 
seen an FBI rap sheet, or I never had the opportunity to use one in the 
20 years I was a police officer. I never had any desire or need for one 
because we relied on our local, county, or State investigations. I 
assume this FBI report in some of these smaller communities tlu'ough- 
out the Midwest where the}" don't have the type of setup we have in 
Nassau would be used more, but I would not know one if you put it in 
front of me. 

]Mr. Garrison. Don't you occasionally have instances in wliich it 
becomes knowm that an individual who is ah"eady either suspected or 
charged with a particular crime was previously arrested either locally 
or in a nearby jurisdiction — somehow it comes to 3'our attention that 
he was arrested — and an investigation of the underhdng circumstances 
about that previous arrest leads to the uncovering of information 
which may be relevant to the current prosecution? 

I have in mind, for example, the possibility that by checking in a 
neighboring county you may find that John Doe, who is now being 
prosecuted by you for some offense, was arrested 2 3'ears ago on a 
trespassing charge; then it ma}' turn out that by checking with the 
local police there you find that the trespassing really involved a 
"Peeping Tom" situation, not simpl}^ walking across someone's front 
yard. This, in turn, may lead you to find out who was involved in 
that case, and by talking wdth the complainant in that case, even 
though the charge might have been dropped for some reason, the 
potential for developing relevant information is sort of unpredictable. 

The fact of an arrest in the past merely serves as a lead for further 
investigation. Isn't that a fairly common use of arrest data? 

Mr. Gordon. Yes. 

Mr. Van Norman. Yes. 

Mr. Garrison. Thank you. 

Mr. Edwards. The committee thanks you, Mr. Gordon and 
Mr. Van Norman, very much ; and especially Mr. Gordon, from your 
experience as a working police officer, was very helpful to the 
committee. 

We stand adjourned now, and the next series of hearings will 
begin on Wednesday, April 26, with Francis Dale, president of the 
Cincinnati Enquirer, and the American Civil Liberties Union. 

(Whereupon, at 12:05 p.m., the subcommittee was recessed, to 
reconvene Wednesday, April 26, 1972, at 10 a.m.) 



DISSE3IINATI0N AND USE OF CRI3IINAL ARREST 

RECORDS 



WEDNESDAY, APRIL 26, 1972 

House of Representatives, 

Subcommittee No. 4 of the 
Committee ox the Judiciary, 

Washington, D.C. 

The subcommittee met at 10:05 a.m., pm^suant to recess, in room 
2237, Raj'bmTi House Office Building, Hon. Don Edwards of Califor- 
nia (chairman of the subcommittee) presiding. 

Present: Representatives Edwards, Wiggins, Sandman, Keating, 
and McClory. 

Also present: Jerome M. Zeifman, counsel, Samuel A. Garrison III, 
associate counsel, and Alfred S. Joseph III, assistant counsel. 

Mr. Edwards. The committee will come to order. 

This morning Judiciary Subcommittee No. 4 continues its public 
hearings on H.R. 13315, a bill to amend title 28 of the United States 
Code to provide for the dissemination and use of criminal arrest 
records in a manner that insures their security and privacy. 

To introduce om- first witness today, I yield to the very distinguished 
member from Ohio, Mr. Keating. 

Mr. Keating. At this time it is my pleasure to introduce a fellow 
Cincinnatian, Air. Francis L. Dale, who is the editor and publisher 
of the Cincinnati Enquirer. He is also president of the Cincijinati 
Baseball Club. He has been an outstanding leader in the community 
as a practicing attorney where he first started. He was in many and 
varied activities ; he has made a great contribution to the community 
by being so active and aggressive and forward looking in all of his 
activities. 

It is a real pleasure for me to be able to have the opportunity to 
introduce him to testify on such an important part of our way of life 
and one in which he feels ver}^ strongly. 

I yield back the balance of my time, Mr. Chairman. 

Mr. Edwards. Thank you very much, Mr. Keating. 
Mr. Dale, will you please proceed ^^ith your statement. 

TESTIMONY OF FRANCIS L. DALE, PRESIDENT, CINCINNATI 

ENQUIRER 

Mr. Dale. Thank you, Mr. Keating and Mr. Chairman. I appear 
this morning as a member of the National Council on Crime and 
Delinquency, a prestigious organization working in the field of criminal 
justice, a private organization, some 70 years of age. I became inter- 

(135) 



136 

ested in this work as a result of the increasing interest that the business 
community has shown in the field of criminal justice. 

I appreciate the opportunity to appear before the subcommittee 
to testify on this bill. I have long felt that both criminal arrest and 
conviction records have burdened too many of our citizens with a 
tremendous impediment to their reentry into society from the criminal 
justice system. In testimony before the Senate Subcommittee on 
National Penitentiaries, I stressed the need for opening up opportuni- 
ties for those saddled with criminal records. I think we all agree that 
the most important area of opportunity is that of employment. 

Without this opportunity a man's options are limited; and limited 
options are conducive to criminal activities. For this reason, I have 
testified on behalf of automatic expungement of all criminal arrest 
and con\dction records for all but law enforcement purposes. 

Frankh^, it is a sad commentary on our present sA^stem of justice 
that legislation such as this is even necessary. In our society, a man 
is presumed innocent until proven guilty. Therefore, any arrest which 
does not lead to subsequent conviction should not be recorded, let 
alone disseminated, as a stain on a man's record. 

If a man is found innocent, or not charged with the specific crime 
\\dthin the 2-3^ear period, the record should be destroyed. 

H.R. 13315 will go far to eliminate the impediment of a criminal 
arrest record, which can destroy a man's entire career. A record of 
arrest, alone, will no longer plague him as he seeks employment or 
credit. An arrest record is as irrelevant to most positions in the job 
market as questions of race, sex, or religious preference. 

Unfortunateh^, section 3102(c) excludes the ex-offender from the 
provisions of this bill. It seems sad that such a necessary and forward- 
looking bill should perpetviate the self-fulfilling prophecy that "once 
a con, alwa3^s a con." 

In this bill, the ex-con is excluded from the same opportunities 
which we claim are so necessary to satisfactory adjustment of the 
average citizen in our society. I sincerely hope our society will elimin- 
ate the stigma of ex-con so that rehabilitated citizens are not inhibited 
in their efforts to "go straight." Equality of opportunity and freedom 
to succeed wdll be one more reaffirmation of our democratic principles, 
principles which must be extended to our rehabilitated citizens. 

Section 3105 provides for a hearing to determine when dissemination 
of such arrest records shall be authorized. Although not specifically 
mentioned, I assume that such a hearing wdll incorporate all the 
protections of due process of law" including the right to representation 
by counsel and examination of information and witnesses. Assumptions 
alone, however, are not adequate protection and I suggest that such 
pro\dsions should be spelled out. 

On the surface, section 3106 clearh^ protects the individual's right 
to privac3^ However, these protections must be closely safeguarded. 
The organization. Efforts for Ex-Convicts, Inc., has reported that 
similar legislation in Washington, D.C., is circumvented by employers' 
requirements that prospective employees sign a waiver of this right in 
order to complete a job application. Perhaps the penalties section — ■ 
section 3107 — should incorporate a specific prohibition to such 
requirements. 

My experiences with the National Council on Crime and Delin- 
quency have shown me that citizens of the United States are shocked 



137 

and dismayed by inadequacies in the criminal justice system. They 
want change. They feel that a man or woman with a record must be 
treated as a valuable human being before he or she will begin to make 
positive contributions to our society. 

People are calling for bold, decisive moves now that will correct 
long-standing inequities. The limiting of the dissemination of the 
criminal arrest records is such a move. It will enable nonprejudicial 
judgments of a man's worth. 

As \^Titten, this bill is a first step. I would hope that as a result of 
these hearings the subcommittee will make this bill a bold stride in 
the march to correct the inequities of the criminal justice system. 

Mr. Chairman, if I may make one comment which I would hope 
would be helpful to you. I tliink it would be encouraging for you to 
be aware of the increased interest that the business community is 
now evidencing in this field through the National Council on Crime 
and Delinquency wliich has been an organization of experts, perhaps 
thinking 10 3^ears ahead in this field for a number of years. 

We have approached the business community recently because the 
Congress has been forward looking and is supplying great amounts 
of money now to try to help in this field. It has become more necessary 
and more important for us to involve more people and at the specific 
request of the Attorney General we have approached the business 
community. 

We have found a vital interest there. Last October in Chicago, we 
held an all-day conference at which 75 top executives of the top 
corporations in this countr}^ were asked to come and hear a presenta- 
tion on the work of NCCD and what LEAA and all of these things 
can be doing. 

We were surprised to find they did not send in PR vice presidents 
as is so often the case, but they come themselves and spent the entire 
day. 

We now have a national executives committee assisting us on which 
these top corporate executives serve, gi^^ng us advice and help, and 
at their insistence, we are now designing a citizen action program. 
It ^^^ll be approached just as business would approach a new product. 
We are going to test market it. We are going to test the product and 
report back and if it proves satisfactory we will move forward. 

We have designed, through our research center in Davis, Calif., a 
method of measuring the public's awareness and knowledge of the 
criminal justice system now. Then we designed a package of action 
wliich citizens and citizen groups can take. 

We are not talking about little old ladies turning on the porch 
light at night. We are talking about something significant. 

How can you design a program of citizen action which will involve 
people in understanding and learning the problems thi'oughout all 
phases of the criminal justice system, the arrest, incarceration, pro- 
bation, and the whole bit, and then can that increased knowledge be 
translated into action in support of legislative bodies of city officials 
and so forth, and the State legislature, and then if it can be trans- 
lated into that kind of action, can we measure the difference that can 
be made effective citizen program. 

These corporate executives have helped us pledge the private funds. 
The}^ are putting their oa\tl money into this, sajdng, "On a one-time 
basis we want to test this." We are selecting two States in which to 



138 

operate. We have already made a presentation to Governor Reagan, 
primarily because California is a State of great variety. You can test 
almost anything in California — anything good, that is. And it was re- 
ceived very enthusiastically by the Governor. 

Mr. Kenneth Norris of California was to be our head fundraiser 
there. Unfortunately he died several weeks ago, as you perhaps know. 
Mr. Barron Hilton will take up that job. We are beginning now to 
start California and the corporate executives are pushing us. They are 
writing every day saying, "How are you getting along? What is hap- 
pening?" We think this is good. 

We have moved into the area of victimless crime. In California part 
of our plan is for every corporation with 1,000 or more employees 
to have its o\\ti alcoholism service and because California has been 
the leader in the mental health field and other fields in bringing com- 
munity oriented services to people who need them, they are willing 
to try this in the corrections field as well. 

Other States now are bidding to have us select their State for this 
test. We have recenth^ been asked to design the same package for the 
eight impacted cities in the target area for criminal justice work. 

I bring this to your attention so that you would realize that the 
business community and the people that we have been working with — 
we now have over 300,000 members through the probation program — 
feel very stronglj'^ about this kind of approach that you are making 
and that is being suggested in this bill. It is positive. 

I believe our people across the country now want this kind of sys- 
tem and the fact that perhaps our corrections system has not been as 
good as it should have been, should not allow us to impede a person's 
recovery back into the society by tagging him with an arrest record 
that might prevent him from the very thing that vn\\ save him. 

I appreciate the opportunity of appearing before you. 

Mr. Edwards. Thank you, Mr. Dale. Both your statement and 
your comments regarding NCCD are really very forthright and it is 
very encouraging to know that this kind of movement is going on 
in the country. I hope that you can send, perhaps to the committee, 
or to Mr. Keating, some of the printed information about NCCD. 
I am sure that the House of Representatives as a whole would be 
interested in it. It would be especially interesting to this subcommittee, 
which has certain jurisdiction -v^dth respect to narcotics, for example, 
a victimless crime if there ever was one, and to Subcommittee No. 3, 
chaired by Bob Kastenmeier of Wisconsin, which on a daily basis 
is holding hearings on the corrections system in the United States, 
and which will come up, we hope, with some comprehensive legislation 
that will move us along the road toward a modern corrections sj^stem 
at both the Federal and State levels. 

I wouldn't want to give the impression that this bill has an easy 
path. We are going to welcome, Mr. Dale, any assistance that you 
and your organization and the business community in the United 
States generally can give it. 

We have had a number of witnesses who have testified in opposition 
to the bill. 

Mr. Dale. I understand that. 

^Ir. Edwards. I, and I am sure other members of the committee, 
constantly receive mail from organizations throughout the United 
States to the effect that the bill shouldn't be passed. I have one in 



139 

front of me here, from my local police department's union. It says 
that the bill's passage would have an adverse effect on law enforce- 
ment that maintaining criminal histories is, of course, the basic 
investigative tool available to enforcement officers and that circum- 
scribing this use would be a serious threat to the effectiveness of the 
local law enforcement. 

How would you answer that, Mr. Dale? 

Mr. Dale. Well, this bill, as I understand it, excepts the law 
enforcement purposes of a criminal record so that the comment is 
not dnectly related to this bill. We are talking about something 
else. I don't believe that we should use the criminal record as an 
excuse for our failures in the other parts of the correction system. 

If we use a criminal record in the are of employment, let's say, 
and if it is used and we allow it to be used in that way, we are continu- 
ing the correctional term that a person subjects himself to by com- 
mitting a crime beyond that time. 

If it is a correctional system, if it does rehabilitate, there should be 
no record whatever. I understand, we all understand, that the re- 
habilitation process is not perfect. But it seems to me that the time 
has come that we should stop the term whenever they are released and 
supposedly rehabilitated and give them a chance. The best rehabilita- 
tion help of all is to get them back in societ}^ and into productive work, 
and the only way we can do that is take awa}' all of the impediments. 

You mentioned unions — I think one of the most remarkable hap- 
penings in the last several 3'ears is that the unions are now — they have 
always traditionally been — \aolently opposed to convict labor. That 
was almost a catch phrase to the unions. Two of the most exciting 
projects that we are now helping with are sponsored in Akron and 
Terre Haute, by the AFL-CIO. Their members are going into the 
prisons and helping to organize a training program among con\acts. 
Their slogan is that we need mechanics more than we do automobile 
license platemakers and it is a good slogan, we really do. 

So, I am hoping that tliis committee w^iU be able to see that the 
opportunity here is that employment is the best possible rehabilita- 
tion and we should not let the fears of our failures be attached to this 
particularh' narrow bill that this is. 

This is a bill to open up an opportunity for employment. 

I believe the comment in the letter you read is not directed to this 
bill specificalh". 

Mr. Edwards. The savings and loan institutions and the lending 
fraternit}' generalh' in the United ^States have the privilege under the 
Federal law of getting directly from the Federal Bureau of Investiga- 
tion what they refer to as rap sheets, which are arrest and conviction 
records. 

The subcommittee intends to go over and take a look at the FBI 
National Criminal Information Center one of these days. I have had a 
couple of letters from the Washington and California representatives 
of the lending institutions to the effect that these institutions would 
be very much disturbed if the pri\^lege of receiving recortls were to be 
denied to them. The subcommittee is looking into every aspect of tliis 
problem. 

We know how Washington, D.C., has handled the problem with. 
respect to arrest records. There were a great many complaints when 
an employer in Washington, D.C., could get a rap sheet from the 

78-242 — 72 10 



140 

local police department and so man}^ terrible tilings happened, a com- 
mission was appointed. The commission came up with a recommenda- 
tion that, yes, these prospective emploj'ers could get the information, 
but it had to be purged of all arrest records not resulting in convictions 
and that they had to pay $3 each. 

How are we going to answer these lending institutions that say our 
bill will preclude them from getting the information that they need 
to make a judgment on the hiring of a prospective employee who is 
going to handle a lot of money? 

Mr. Dale. Well, I know on the conviction bill in the Senate this 
question came up, and oftentimes the conviction or the arrest 
record in this case does not relate to money at all. It may relate to 
something else. It may relate to some physical violence or family 
disturbance or a lot of things that do not relate to their mone}". 

I would sa}^ in my judgment that if a bond were sought — for 
example, you are trying to get a bond for a cashier in a bank, or 
president of a union or something of that nature — it would seem to 
me that vrould be an appropriate request to get a rap sheet. 

1 think the arrest record is an automatic way of saying no. It is 
very eas}' for me to testif}^ about this having had some relationship 
to lending institutions. It would seem to me that the real basis of a 
sound loan is not something that happened 5 years ago or yesterday. 
It seems to me there is a broader base than that. 

Is the man employed? does he have a famil}^? is he secure? does he 
have a home? It is the same thing you are tr^^ing to look for when you 
are trying to give bail. What are the contacts with the community? 
That is what you base it on. 

It seems to me often a record is a checkmark. No; it is an easy 
way out and I recognize that this would requhe perhaps more investi- 
gation on the part of a lending officer or on the part of an emploj^er. 

I suppose that we may be idealistic about it, but isn't that really 
the basis on which we should be making our judgments anyway, 
rather than some artificial record. It is a fact of a man being arrested 
and certainh^ if the conviction relates to, as I indicate, perhaps a 
bond being gotten, I think that is important, or in some cases a license. 

But is it really important that the arrest be known for that? I am 
certain there is another side of the argument, but that would be my 
answer to it. 

Mr. Edwards. Mr. Wiggins. 

Mr. Wiggins. With joixr permission, I would like to yield to my 
colleague from Ohio and permit him to question his own constituent. 
Are you a constituent of Mr. Keating's? 

Mr. Dale. Yes, sir, proudh" so. 

Mr. Wiggins. W^e think highly of him and want 3'ou, as one of 
his constituents, to know that we are very pleased with his work 
in the Congress, 

Mr. Keating. He is not onh^ a constituent, he lets me know when 
I do things wTong. 

Mr. Dale. That is a definition of a good constituent, isn't it? 

Mr. Keating. That is right. 

Part of this bill prescribes a limitation of 2 3^ears in the dissemi- 
nation of an arrest record. Now, I would like to address the question 
to 3'ou as to what limitation in time you would place upon dissemi- 
nation, or are you simply sa3"ing there should be no dissemination 
of arrest records at all? 



141 

Mr. Dale. No, I would accept the 2 years. I suppose that is a recog- 
nition that it may take 2 years to get around to a conviction. I think 
as long as there is a i)rosecution pending or likel}^ that the arrest record 
should be made available and free, but if it is going to be dropped, as 
is provided for in the bill, or if the prosecutor decides early in the game 
that he is not going to pursue it, the bill provides for a method in 
which the arrest record is limited earlier than 2 3^ears. 

I assume that 2 years was placed in there because that seemed to 
be a reasonable time within which any arrest could be followed by a 
trial. 

Mr. Keating. That has really been one of the principal questions 
in the bill, as to what is a reasonable time. Is 2 years reasonable? 
Should it be 5, should it be one? The indications have been to a large 
extent that 2 3'ears might be too short in some jurisdictions, but, in 
any event, we did want your opinion on it. We have had, I suppose, 
more varied opinion on that particular section than anything else. 
I believe that is correct. 

Mr. Dale. My own judgment about that would be that the shorter 
the period perhaps tliis would serve as a prod to the prosecutors and 
the court system. 

Certainly in imjjortant arrest cases I think it would be helpful to 
have a little deadline there to let them face up to, because I continue 
to believe that if our judicial sj'stem is given some deadlines and 
prods it will respond to it. 

Mr. Keating. Certainly we need speedier justice and speedier trials. 

With regard to training convicts or people incarcerated in the 
various jails across the country, I couldn't agree ^^'ith you more that 
emi)loyment and providing vocations or occupations for them for the 
da}" when they are released is of prime importance. 

But in connection with this, I have noticed in some of the institu- 
tions I have visited that while they are making products, such as 
shoes or blankets or sheets or clothing, that are used within the State, 
there are certain restrictions. 

First, we find the equipment with which they work is good Vo pro- 
duce that product, but when they get into industry there is completeh' 
different equipment, so they reallj' aren't trained to do the job when 
they are released. 

Second, we find that there are restrictions — they can only sell to 
other State institutions and even that is on a limited basis, so that their 
productive capacity while incarcerated is severely limited. 

Is there anj^thing your organization is doing in this area? 

Mr. Dale. Yes, the daily release work program is designed partly 
to avoid that problem. There are some realh^^ ridiculous stories that 
can be told about a man being trained and all of the expense of the 
prison sj^stem, training the man in computers and he gets out and they 
are no longer making the computer and he has no talent whatever. 

In order to try to avoid the heavier expenditure since we probably 
could not afford to go in and keep the manufacturing plant within a 
certain institution up to date, so rather than doing that, it would 
seem to me better for a number of reasons, including the training, to 
design a release work ])rogram so that they can come out during 
the dsbjs, those who can qualify and be trusted on that basis, and 
they can be taught in industry. 

And again, I say this is the remarkable thing that the unions are 
now accepting this willingly. I thmk that probably is the answer to 



142 

that question. There is a maze of State legislation which prevents — 
for example, in some States you could not be employed as a guard 
in the State capital if you have an arrest record. Now this is the very 
State which presumably was to rehabilitate the man and they put 
him away for 5 years and because they failed or maybe they succeeded, 
but they won't give him the benefit of the doubt and employ him as 
a guard in their own State capital. 

It has always been a matter of interest in Ohio of newspaper 
people that a trust}^ could be the chauffeur for our Governor and 
drive him around the State. What is so remarkable about that? 
If a man has paid his debt, or presumably has and we have had the 
State make a judgment that this man can return to society again, 
v/hy should he not be the Governor's chauffeur or anybody else's 
chauffeur. 

So it seems to me there is an enormous maze of legislation which 
prevents the very thing that will solve the corrections problem to 
a great extent and that is return the person to society, let him get 
back in the mainstream. Wh}^ exclude him? 

Mr. Keating. You may be interested in knowing that during 
the disturbance in Attica they had three people on work release 
who kept going and coming while all of this was going on, which I 
found to be of interest. 

I think we finally have the work release program and the workhouse 
in Cincinnati on the road. It took a couple of years. We approved it 
when I was there. 

Mr. Dale. Yes. 

Mr. Keating. With regard to the unions, we tried often to get 
them to agree to permit the inmates to paint the outside of the 
Cincinnati workhouse, for example, but we could never accomplish 
this or do some of the carpentry work that needed to be done. They 
used to sneak around and paint the inside when no one was watching, 
but it doesn't seem fair that these men who are willing to work 
can't do so and keep in repair the workhouse itself and the facilities 
in which the}^ work. 

Mr. Dale. I think education is working in this situation now. 
Union members are now understanding, coming to understand, as are 
businessmen, that the man out of an institution coming into society 
without a job constitutes more of a risk personally through his criminal 
activities than he does economically in a job. The man who comes out 
and doesn't have a job and is induced to continue or go back to criminal 
activities, supporting a drug habit, or stealing, breaking into the 
houses, they are breaking into the houses of that union member. The 
businessman hns to pay greater taxes to support this kind of thing. 
They are beginning to understand that the cost is greater to them in 
criminal activities than it is in community-oriented rehabilitated 
service such as the work release program. 

I think that awareness is coming now, and I think you will find that 
the union acceptance of the work release programs will be greater. 
The Junior Chamber of Commerce is doing a great job across the 
country actually going into institutions and organizing a unit of their 
organization in the institution, and taking upon themselves the obliga- 
tion to see to it that that man is brought back into society when he is 
released. 

This kind of thing, I think, is gromng rapidly, and that is why I 
am willing to support this kind of effort. 



143 

Mr. Keating. Well, the tax savings, it seems to me, would be 
tremendous if these men could be permitted to do the work and the 
maintenance within a facihty, so that they would be occupied and 
busy. This would reduce the problems inside the jail facility itself. 

Have you considered the possibilit}' of increasing the pay to inmates 
for ]3roductive work? 

Mr. Dale. Yes, tliis has been done, also again, \\-ith union support. 
Some work is now being done in the Northwest in the aircraft in- 
dustries. The whole thing ties together. It is remarkable how you can 
take a blank sheet of paper and a good hard-nosed accountant and 
sit down and tell him how you can save the compan}" a lot of money 
if he ^^'ill provide a work program instead of building another prison. 

As the chairman may know, partly through NCCD work — we are 
not taking crecUt for it, but we made the suggestion — in California 
something like $200 milhon has been saved b}^ recognizing that the 
most expensive correction program that we could possibly have is to 
build new institutions. 

In CalifoiTiia now, they are not building new institutions and they 
are even closing some because they are transferring this whole idea 
back to community orientation. It cost S21,000 per bed to build an 
institution bed for an inmate. That is not maintenance; that is just 
to build it. That is equivalent to a fully equipped hospital bed with 
all the modern equipment 3-ou can think of. If you can take about a 
fifth of that money and provide it in community-oriented probation 
services, supervised services, the opportunity to rehabilitate that 
person is greatly increased. The tax burden is reduced. The police 
supervision is reduced. Obviously there \\'ill be some risks in this, 
there always are, but those risks apparently are well worth taking. 

Mr. Keating. I think we are probably under the 5-minute rule 
and I have exceeded my time, so I yield back to the gentleman from 
California, and I thank you for jdelding to me. 

Mr. Edwards. Mr. Wiggins. 

Mr. Wiggins. Thank you, Mr. Keating. 

Mr. Dale, the general purpose of the legislation before this' sub- 
committee is to limit the availability of arrest records because it is 
felt by many that a simple arrest is probative of nothing in particular 
and may, indeed, inflict upon the person arrested subsequent disabil- 
ities in employment, social contacts, and other things. That is a 
position, as I understand your testimony, with which you agree. 

Mr. Dale. Yes. 

Mr. Wiggins. In fact, that statem.ent is summarized in j^our testi- 
mony, and I quote from it, "Any arrest which does not lead to sub- 
sequent conviction should not be recorded, let alone disseminated, 
as a stain on a man's record." 

Mr. Dale. Right. 

Mr. Wiggins. You bring to the hearing this morning, Mr. Dale, a 
unique opportunity to comment on something that we have raised 
in the past, and I would like to discuss it with you now. 

The Cincinnati Enquirer is a newspaper, I believe? 

Mr. Dale. Yes. 

Mr. Wiggins. And you are the president of that newspaper? 

Mr. Dale. Yes, sir. 

Mr. Wiggins. Do joii find any inconsistency between the function 
of a newspaper in widely disseminating the fact of an arrest as a news 
item and the purposes of this legislation? 



144 

Mr. Dale. No. In our own situation, if I can talk about our own 
policy, an arrest as to a major crime is reported for a number of 
purposes. No. 1, to satisfy the fears of a community that a danger- 
ous person perhaps is still at large. Immediately after a crime, the 
facts about a fugitive will be displayed to help the police. 

In our own instance, for example, we do not use a man's race 
unless it becomes a particular issue wdth respect to the fugitive; after 
he is arrested, it is no longer referred to. 

Arrests are also reported in order to assure the public that the law" 
enforcement agencies are doing their job and doing it well or poorly, 
whichever the case may be. 

In our own instance, we have a crime log that we now report in 
conjunction wdth television and radio stations, but we also report 
dispositions of cases. Our own paper happens to be rather conservative 
in this. We are not a crime-oriented newspaper at all. There are some 
inconsistencies perhaps if it would be repeated, but I think the 
overriding requirement of the public to know that the law" enforce- 
ment system is working, that arrest after crimes are made, I think that 
is important for them to know. 

I would certainly agree that you should not beat this thing to 
death because a man has been arrested. 

Mr. Wiggins. Well, I am sure that the flavoi of an inconsistency 
is apparent, but your response indicates that there is an overriding 
public interest in widely disseminating the fact of an arrest through 
the newspajjer media, which may not be present in widely disseminat- 
ing the fact of that arrest to another, narrower group of persons such 
as potential employers. 

Mr. Dale. I think there is a distinction. The newspai)er will report 
the arrest at the time. This bill relates to the continued dissemination 
after an arrest for a different purpose. The arrest is reported because 
that is part of the judicial process that is being followed. The law 
enforcement agency has made an arrest and it is now before the courts 
and prosecuting attorney. 

But we do not disseminate thereafter, if a man becomes news- 
worthy as api^lying for a job or an elected officer of a corporation. 
We don't say an excon is now president of a new" corporation. We 
don't say this. 

Mr. Wiggins. I think some new^spapers would regard that as a 
newsworthy event. 

Mr. Dale. There are some bad newspapers as well as bad people. 

Mr. Wiggins. I think it is routine practice in your business in 
general to maintain a morgue, which is a clipping file, on prior events. 

Mr. Dale. Right. 

Mr. Wiggins. Don't your reporters find that a useful sort of in- 
formation in evaluating current news? 

Mr. Dale. Surely. 

Mr. Wiggins. Is there any similarity that strikes you between 
that operation and the reference to a depository of criminal histories? 

Mr. Dale. Yes; there is a similarity. The question is whether it 
is used or not. I think there is a real problem; for example, if an arrest 
is reported originally. I suppose that a lending institution could 
come to our morgue and ask for information about a person they 
wanted to and they could find it that way. 



145 

I think that is a problem. But they could find it other ways as well. 
But the point about it is that no official record would be disseminated 
under this bill. 

Mr. Wiggins. The fii-st paragraph of the bill, which you have 
before you, section 3101(a), reallj' hits right at the heart of the 
bill when it says that no official shall disseminate an arrest record 
except to another law enforcement official. In summaiy, that is what 
it savs. 

Mr. Dale. Right. 

Mr. Wiggins. Do 3^ou believe that that would prohibit a police 
officer from re])orting the fact of an arrest to a newspaper reporter 
who is inquuing about it? 

\lr. Dale. Yes, I do, after it was entered onto the public record, 
after it is on the police blotter. 

Mr. Wiggins. Now, acceptmg that as your response, would you 
feel that this section as applied to newspaper reporters, at least, would 
be consistent with these overriding public considerations which you 
indicated a bit earlier in your testimony? 

Mr. Dale. That would not bother me. I am not bothered by any 
inconsistency there. It would not bother me that any reporter would 
have to find out about it in a different way and they could. Like the 
lending institution, they would have to do a little more work. I don't 
know that the police officers shoidd be doing our work anj'way. I 
don't have much s^mipathy for police reporters who get the informa- 
tion from the police blotter and come in and report a big stor}'. There 
are other waj's they can find it out and proper ways. 

Mr. Wiggins. To summarize then, I understand j^our response to 
be that the bill before us would prohibit access by newspaper reporters 
to police blotters and to other arrest records maintained by police 
departments, and that in your opinion this would not be unduly harsh 
with respect to the news media? 

Mr. Dale. No, I think not. I think there is a distinction to be made 
from the original arrest and from the time that arrest is entered into a 
record, a criminal record as such. I don't thmk you can ever block off 
the arrest blotter of the day. I don't think you can ever stop that. It is 
a public record. 

Mr. Wiggins. All of these, Mr. Dale, are in one sense "public" 
records. We are reall}^ defining in this legislation the extent to which 
that particvdar record will be made available to the public. 

Mr. Dale. I understand. What I am saying is after the original 
arrest, a man is arrested and entered on the police blotter that daj^, or 
anyone, I think there is an overriding public mterest in that fact. 
It shows the work of the police and the judges and so forth. 

Following that, however, whatever hap])ens to that arrest and the 
fact of that arrest is entered into a criminal record. I think that could 
be prevented from dissemination and should be. 

Mr. Wiggins. That testimony leads me to believe that the blotter, 
as that term is generally understood 

Mr. Dale. It is a daily record. 

Mr. Wiggins. A daily record of arrests is not covered in your under- 
standing of the statute, but rather only the mdividual "rap sheet'^ 
if 3"ou want to call it that, which is compiled on an individul mvolved, 
with the law. 

Mr. Dale. That is my understanding. I may be wrong about that, 
but that is my understanding. 



146 

Mr. Wiggins. Do you believe that the purposes of this legisLation 
could and would be frustrated by private ser^dces takins; advantage of 
other more accessible public records, such as court dockets and other 
sources where the fact of a man's involvement with the law is main- 
tained at present as an open public document? 

That is the kind of record that your reporter, for example, would 
refer to \\dth impunity and should not be limited in doing so. I have 
considered the possibility that if the fact of a man's arrest is important 
to a business, for reasons kno^^^l best to them, they might be mlling 
to pay somebody to obtain that kind of information and it may become 
a profitable private enterprise to accumulate it. 

Do you tliink that is possible? 

yir. Dale. I think it is possible that the credit bureaus. Dun & 
Bradstreet, people such as that, could make a living off of finding 
those records which could be available elsewhere. I think this is a 
step, and I think it would tend to reduce the use of a criminal record as 
a false excuse for denying someone employment and I think the bill 
would help tear down that false excuse. 

I think once it has gotten into our system and we understand it in 
that sense, it mil go a long Avay toward that. 

Mr. Wiggins. My fear, Mr. Dale, is that if b}^ reason of this legisla- 
tion we develop a market for a private service, that private ser^dce 
is to some extent beyond the control of government, and the quality 
of the information which they disseminate may be very poor and it 
may be very difficult for us to improve it. 

However, one alternate approach to this problem is not to forbid 
the dissemination of information but to improve the quality of the 
information which is disseminated, for example, by including thorough 
dispositions as well as simply the fact of an arrest. By following that 
technique, which, incidentally, I am not embracing, the Government 
remains in control of the records and in control of the quality of 
information which may be disseminated, which in the long run may be 
a better approach, some have suggested, than the approach in this 
legislation. 

Do you care to comment? I would like to hear 3"our comments. 

Mr. Dale. One comment I would make is I suppose the general 
rules of libel and slander and so forth would apply to an incomplete 
or false research job on someone's life. They apply now. Perhaps the 
difficulty there is that an unemployed ex-con is not likely to vnn a 
large libel judgment against Dun & Bradstreet, probably because 
of his lack of resources and there again, you have discrimination. 

But I tliink there are some risks there. It is my judgment that 
this kind of a bill would help start this tendency toward tearing down 
false excuses for nonemployment and would tend to dramatize the 
opportunity for employment if the records are not disseminated by 
officials. 

I have some doubt that it would be worth it to people to employ 
a private detective agency, so to speak, reporting agency, on this 
kind of thing, except in those cases where it was trul}^ important, such 
as applying for a bond, and that would almost be in the nature of 
law enforcement purposes itself. 

You have the same problem with respect to licensing. In the States 
where you have to get a license as a barber, if you have been arrested, 
perhaps you can't get that, yet in the institution he was taught to 



147 

become a barber and because he comes out and has a record he can't 
get the hcense for which he was trained. 

Those kinds of inconsistencies, I think, could be eUminated here. 
The fact that a person can ignore an arrest record in answering ques- 
tions on an employment application, I think, is an important step 
forward. 

Again, I think there should be some way in — you know, if a person 
has been convicted of defrauding someone, that is a different case, 
but arrested and not convicted. Perhaps all of this comes about 
because you see in the early days we used to recognize that everyone 
had to subject themselves to a possible arrest in order for society to 
be orderly and we didn't think originally of arrest as conviction, but 
we have come to the point now that arrest itself is a stain. 

It has become a stain because we have used it badly. 

Mr. Wiggins. The real problem, Mr. Dale, as I see it, or at least 
one of the problems as I see it, is not to fashion legislation in order to 
protect the irrational use of arrest records in such a way as also to 
preclude its rational use. 

Air. Dale. True. 

Mr. Wiggins. Now that calls for some discrimination here, and I 
don't mean that in a racial sort of way, but discrimination as to the 
use of words and definitions. Also, there is a great need for analysis 
of an arrest, because it is a fact that an arrest alone is a mighty sig- 
nificant fact, in some cases. 

Mr. Dale. Right. 

Mr. Wiggins. In other cases, it is a meaningless thing without 
an analysis of the circumstances surrounding the arrest and the reason 
for not prosecuting, for example. That kind of discrimination is difB- 
cult to write into a statute, but it really is needed. We \\i\\ have to 
give some thought to filling that need on the subcommittee, but it 
is a difficult problem. 

Mr. Dale. It is. The laAV enforcement purposes only perhaps need 
fairly close definition. 

Mr. Wiggins. Thank you. ^ 

Mr. Edwards. Mr. McClory. 

Mr. McClory. Thank jo\i, Mr. Chairman. 

I want to join in commending you, Mr. Dale, on your testimony 
here this morning. I think we should deliver a transcript of this 
testimony to subcommittee No. 3, which is investigating the subject 
of penal reform and corrections, because you have provided some 
useful comments on that subject as well as on the subject of the 
legislation which is before this committee. 

My thoughts have been along the lines of those of my colleague 
from California, Mr. Wiggins, in sensing the possible conflict or the 
possible discrepancy between the desire to suppress or expunge or 
prohibit the dissemination of arrest records by way of maintaining 
the reputations of individuals or helping in their rehabilitation, and 
the other aspects of the public's right to know and the rights under 
the first amendment which the press so jealously guards. And I might 
say in mv own observation there have been terrible journalistic abuses 
of arrest records, including photographs and arrest identincation 
numbers and things like that, pertaining to persons who were not 
guilty of any offense but were actuall}- vindicated of the offense 
charged. 



148 

In considering arrest records either of offenses for which a person 
has paid the penalt}^, or of which the person was exonerated, woukl 
you sense that there is any distinction between arrest records where, 
for instance, there have been multiple oft'enses or where there have 
been, say, two or three offenses in which the use of a gun was involved, 
or where the exoneration appears to have involved some irregularity — 
for instance, with regard to the operations of the court or prosecu- 
tion — or other factors like that which might indicate that the arrest 
did indeed involve a great deal more than just a simple arrest for 
which the person was exonerated. 

Would you comment on that? 

Mr. Dale. Well, I think that is a recognition that an arrest is 
often itself a punishment. The fact that the courts didn't get to it 
or there was some irregularity in the hearing, so often we are willing 
to let the fact that the arrest was there be used as the punishment 
for a person which is an assumption of probable guilt. 

I really think that is a bad use of the arrest. I think that is one of 
the things we must clear out of our society. The arrest is not a 
presumption of guilt. 

Mr. McClory. Well, there may be an arrest, for instance, and the 
prosecution may go in and nol. pros, the case, even though in your 
opinion, as a journalist, the evidence is overwhelming in favor of the 
guilt of the defendant; should that arrest record be barred from 
dissemination and use? 

Mr. Dale. I think we need to face up to that, that the arrest is not a 
presumption of guilt, regardless of the evidence, because we are not the 
judges. Somebody has to do that and that is a burden on the prosecutor. 

Mr. McClory. What about cases of arrest for kidnaping, or for 
murder, or something like that, where the prosecuting witnesses are 
disposed of or intimidated and you as a journalist are aware of this 
through your careful investigation? Is such an arrest record going to be 
immune from dissemination and use? 

Mr. Dale. In my judgment, it should. We must face up to this issue. 
We really must. Either we believe it or we don't. That a man is inno- 
cent not until a newspaper man saj^s he is guilty, not until something 
happens that prevents his being declared guilty, but in our sj'stem he 
is innocent until he is proven guiltj^ in a court of law. 

Now we live by that or not. In mj judgment, we face up to it and 
not use arrest as evidence of guilt. 

Mr. McClory. There are many accounts, of course, of those 
involved in organized crime who are suspected, at least, of being guilty 
of all kinds of heinous crimes, of drug trafficking and dealing in 
prostitution and in political connections and corru])tion and things of 
that nature, who have never been found guilty of crimes for which they 
have been arrested. 

Ai'e those arrests, in your opinion, still immune from dissemination 
and use? 

Mr. Dale. In this case, of course, you have the 2-year provision 
here, which puts the heat where it should be, on the prosecutor, and 
the judicial system, and the record is not Ijeing expunged for law 
enforcement purposes, so that if a second arrest and trial is had on a 
different crime, the first arrest is available for evidence in that second 
trial. 

So you are not forgiving all of that. So that this bill does take care of 
the kind of situation you are talking about, it seems to me. 



149 

Mr. McClory. At any rate, you would feel that there should be 
some ])rovision to permit the use of arrest records under aggravated 
circumstances such as that? 

Mr. Dale. And as I understand it, that is the purpose of this bill 
also. The 2-year provision certainly allows it and a record can be used 
for law enforcement purposes including trial on other arrests. That is 
protected in this bill. 

Mr. McClory. Or even if it is over a period longer than that? 

Mr. Dale. As I understand it for law enforcement purposes only, 
yes, sir. The record is not destroyed. It is kept within the law enforce- 
ment agency. It simi)ly cannot be disseminated by those agencies to 
persons outside the law enforcement field. So that an arrest record, 
for example, is available to a prosecutor. The example you give of a 
man who is fond of using guns. He has been arrested several times on 
this and he is arrested a third time. 

The fact that he was arrested previously, whether or not convicted, 
would be available to the prosecutor under whatever rules of e^ndence 
might be used if it were a pattern. This is available to the court and 
to the prosecutor, and then of course, if it is in open court it would 
be available to the public. 

But he brings that on himself, you see. That is not somebody else 
doing it to him. The man brings it on himself by committing another 
crime and being arrested again. 

Mr. McClory. We don't know if he committed a previous crime 
because all there is, is an arrest record. 

Air. Dale. Right. But in the trial then he can explain the previous 
arrest record. You see that is part of the protection, I think, that the 
bill has. 

Mr. McClory. But, if it is longer ago than 2 years, would it still be 
available? 

\h\ Dale. As I understand, it would, for law enforcement purposes, 
ves sir. 

Mr. McClory. With regard to the category of juveniles, would 
3^ou want to comment oh how j^ou feel about their arrest recprds? 
Should there be such arrest records, and should they be more private 
even during the 2-year period? Should the press be barred from 
using information about arrests of juveniles? 

Mr. Dale. I don't believe that the press should be barred. The 
press normally does not use it. It is my understanding now, if my 
memory serves me correctly, that the Supreme Court has ruled that 
there must be a record now of juvenile appearances in trials. There 
must be due process in juvenile hearings as well as in adult trials. 

I should think that would apply to everyone, yes. 

Mr. McClory. You think the element of privacy should be 
applied equally? 

\lr. Dale. Yes, I believe that is the meaning of the Supreme 
Court ruling. 

Mr. McClory. I guess it is. 

Mr. Dale. Unfortunately, sometimes, I think. I have the same 
yearning, I tliink, you do. 

Mr. McClory. Yes, I tend to feel the same way, that there should 
be a distinction, but I believe you are right that all of the elements 
that apply to adult crimes are, by the Supreme Court's rulings, 
being made applicable to juveniles as well. 



150 

Mr. Dale. As a matter of practice, I think most newspapers do not 
use the names of persons younger than 18 unless it is a major crime 
and often not even then, until they are bound over to an adult criminal 
division. 

Mr. McClory. The only other comment 1 would make is 1 am 
very interested in your comments on the work release program and in 
Illinois we have a study release program, which is also very useful and 
very constructive, it seems to me. 

Thank you, Mr. Chairman. 

Mr. Edwards. Mr. Garrison. 

Mr. Garrison. Do 1 understand correctly, Mr. Dale, that you 
interpret section 3101(a), the first subsection of this bill, to preclude 
the clissemination only of some type of an official written notation of 
arrest to news media, but not to prohibit the dissemination by simple 
word of mouth of the fact of an arrest by a police officer to a news 
reporter? 

Mr. Dale. Well, I would interpret the words "in any manner" to 
cover verbal as well as written. 

Mr. Garrison. Then, in other words, you would consider this 
subsection to prohibit a police officer from doing anything substan- 
tially the same as divulging the record, even if that interpretation 
requu'ed a little bit of liberality in construing the definition of the 
word "record"? 

The police officer couldn't simply tell a reporter the same facts 
which he could write down on the record. 

Mr. Dale. Well, I believe that this language, to me, when you 
use the phrase "in anj?- manner" it refers both to a verbal dissemina- 
tion as well as a written dissemination. I think you might get some 
trouble about a criminal arrest record, ^^•hether that includes the 
blotter, the signing into the detention home, or detention facilities, 
is that a criminal arrest record or does it become a criminal arrest 
record only after it is entered into, as Mr. Wiggins, 1 think, said, that 
man's particular portfolio? 

Mr. Garrison. But in any event, when you refer to newsmen hav- 
ing means of learning the fact of an arrest, other than through official 
dissemination, did 3'ou mean finding out and bemg able to report this 
without either reference to the official record or tips given to them by 
police officers? 

Mr. Dale. Well, let's keep in mind the 2-year provision here. As 
I understand it, you may not disseminate a record relating to arrest 
which occurred more than 2 years ago. 

Mr. Garrison. No, this section 3101(a) prohibits dissemination 
to anyone outside of law enforcement at any time. The 2-year pro- 
vision in section 3102(a)(1) is a further restriction on dissemination 
to law enforcement officials, if 1 am not mistaken. 

Mr. Wiggins. Right. 

Mr. Garrison. So section 3102(a)(1), the 2-year hmitation, would 
even preclude one law enforcement agency from disseminating to 
another law enforcement agency, I'tecaiise it says no officer or employee, 
et cetera, may disseminate to any person. 

Mr. Dale. Right. 

Mr. Garrison. OK, that is the 2-year limitation, but we are talk- 
ing in 3101(a) about dissemination to any person other than another 
officer or employee of a law enforcement agency. There is no 2-year 



151 

limitation in that. That would mean that when Officer Jones is bring- 
ing the defendant in to be booked, the news media representatives are 
not law enforcement officials to whom the fact of arrest may be 
disseminated. 

And so my question is, if section 3101(a) were either construed or 
amended expressly to preclude a police officer from substantially di- 
vulging the fact of arrest, so that the rather arbitrary distinction 
between writing it down on a piece of paper (thereby making a record), 
and telling the same information seconds before the entry is made, is 
clearly eliminated, what would your reaction be? 

Mr. McClory. If counsel would yield, I think we should point out 
to the witness that in section 3102(c) if the person has been convicted 
of a prior felony the 2-year limitation does not apply and the arrest 
record can be divulged in a subsequent prosecution to a law enforce- 
ment oflBcer. 

Mr. Garrison. But in any event, it could never be divulged to any- 
one but a law enforcement officer, whether there has been a felony 
conviction or not. 

Mr. McClory. I just wanted to point out it is not a flat prohibition. 
If there has been a prior conviction of a felony, then an arrest record 
wliich is more than 2 years old can be disseminated to a law enforce- 
ment person. 

Mr. Dale. In my judgment if 3101(a) were interpreted as broadly 
as you are sa^dng, it would be unconstitutional. 

Mr. Garrison. Why is that? 

Mr. Dale. You cannot arrest a person and then not tell somebody 
he is arrested. You can't hide someone, 

Mr. Garrison. Why not? 

Mr. Dale. You have a right of due process. You have a right of 
fair trial. 

Mr. Garrison. The arrestee has that right, but the newspaper 
doesn't have the right to the information in the hands of the police 
department, does it? 

Mr. Dale. We are not talking about newspapers. We are talking 
about a person can be arrested and you prohibit someone from finding 
out he is arrested. 

Mr. Garrison. Maybe he doesn't want people to know that. 

Mr. Dale. You cannot put somebody away and say goodby and 
hide them forever. You cannot arrest somebody and throw him away. 

Mr. Garrison. If the right exists to protect him, how can you 
say it doesn't matter whether he wants it knoMTi or not? An individual 
defendant can waive a public trial requirement. Now my question is 
only whether, from the newspapers' standpoint, it is an objectionable 
interference mth this overriding public interest in knoAving certain 
things, to which you refer, to prohibit police officers from either 
revealing arrest records or revealing the facts on which the records 
are based? 

Mr. Dale. I don't believe that you can prevent the fact of an 
arrest being made public. I don't think 3'ou can write any such law 
that would be constitutional. We cannot arrest people in this country 
and throw them away and not let anybody know about it. The news- 
paper has no rights greater than any other individual. We are not 
talking about newspaper vis-a-vis other individuals. 



152 

Mr. Wiggins. What about the employers who need to know the 
facts of an arrest and make inquiry. Would the police department be 
in the same ])osition as you indicate they are concerning a newspaper? 

Air. Dale, if the fact of arrest is an important — I keep saying if 
it is important to the particular kind of employment, such as getting 
a bond, but the fact of arrest itself is probative of nothing as someone 
said here earlier. 

' Mr. Garrison. If the mere fact of arrest is not probative of any- 
thing, then my question is: What is the overriding public interest 
in disseminating the fact of arrest to the news media rather than to 
other individuals in the private sector? 

Mr. Dale. The overriding public interest relates to a current 
arrest preparatory for trial and an answer as to whether the arrest was 
proi)er or not. It is a matter of public knowledge and should be a matter 
of public knowledge. 

What I understand this legislation to attack is the continued 
following of an arrest record which in itself has never been cleared 
either as a proper arrest or improper arrest, and if, for example, an 
arrest is made and for some reason there is no trial or the prosecutor 
did not choose to prosecute, the fact of arrest should not be used as a 
stain, if you will, against the person's record. 

The fact of a current arrest, preparatory to trial, is a matter ol 
public interest and I think of overriding interest. My understanding 
of criminal arrest records, as I understood it to be used here, is the 
arrest record of the kind that is still there and keeps hounding a person 
down through the ages so he could never get a job. Something should 
be done about that. . 

Mr. Garrison. I think this goes perhaps to what Mr. Wiggins 
was referring to; namely, that you might, by language in the bill, 
eliminate things either inadvertently or unnecessarily ^^hich are not 
really the evil that is intended to be attacked here. 

But I just want to clarify without belaboring this one point: Are 
you raising a question as to the constitutionality under the first amend- 
ment of section 3101(a) if that provision would prevent official 
disclosure of the mere fact of arrest to news media representatives 
while the prosecution is pending? 

Mr. Dale. Well, I would raise it not only under the first amend- 
ment, but the fifth amendment as well. For the arrestee as well. 

Mr. Garrison. What is the overriding pubhc interest in publishing 
the name of the defendant, as opposed to the fact that some person 
has been arrested for this heinous offense? Don't you fill the pubhc 
need for having its fear allayed by simi)ly reporting that the pohce 
announced that at 10 o'clock last night a 39-year-old male was arrested 
for the rape in northwest, and so forth? When you go further, and give 
the name of the defendant, aren't you then running the risk of doing 
that indi\atlual irreparable harm if he turns out later to be acquitted 
for one reason or another? 

Mr. Dale. If he turns out later to be acquitted, presumably the 
name is cleared. We all understand those problems of clearing it after. 

Mr. Garrison. How many people still say Dr. Sam Shepherd was 
guilty, no matter what the second jury thought? 

Mr. Dale. You are not going to pass any legislation that is going 
to keep people from talking about that. That is part of the price you 
pay for being a citizen. 



153 

Mr. Garrison. If you widely disseminated the fact of arrest, is it 
reparable? 

Mr. Dale. I think that is a question that you can't answer totally. 
To some people you could never satisfy them that Dr. Sam didn't 
kill her, but this is part of the problem of understanding our system. 
The fact whether he killed her or not is not the important fact. The 
fact is that he was not con\'icted of that and presumably he is innocent 
until somebody con\'icts him of that. 

Until we understand that, that is going to be part of the price we 
have to pay. That doesn't bother me particularly. I think that is 
right. That is part of the risk we must all run and I am prepared to 
take it, as I am sure you are. 

Mr. Garrison. Thank you. 

Mr. Edwards. Thank you very much, Mr. Dale, for really most 
interesting and helpful testimony. We really can't compliment you 
enough for the contribution you have made, and thank you, too, 
Mr. Keating, for making the arrangements. 

Mr. Dale. Thank you, sir. 

Mr. Edwards. Mr. Sandman, I am sorry. Did you have any 
questions? 

Mr. Sandman. No; I had no questions. 

Mr. Edwards. Our last witness today is Mr. Aryeh Neier, the 
executive director of the American Civil Liberties Union, New York 
City. 

The committee always looks foi'ward to testimony from the ACLU, 
Mr. Neier, and we thank you for sending us your testimony in ad- 
vance. A number of us have had a chance to read it. It is going to be 
very helpful and you may proceed. 

TESTIMONY OF ARYEH NEIER, EXECUTIVE DIRECTOR, AMERICAN 

CIVIL LIBERTIES UNION 

Mr. Neier. Thank you very much. 

Since 3'ou have my testimon}' and since it is fairly lengthy, I will 
not read it. I hope it will be included in the record of this committee's 
deliberations. 

Mr. Edwards. Without objection it will be included. 

(The statement referred to follows :) 

Statement of Aryeh Neier, Executive Director, and John Shattuck, 
Staff Counsel, American Civil, Liberties Union 

The American Civil Liberties Union is a nationwide, nonpartisan organization 
of more than 170,000 members devoted to the protection of the Bill of Rights. 
We stro)igly endorse the spirit of H.R. L33L5 as an important first step toward 
eliminating the "arrest record prison" which has grown up in the shadow of our 
criminal justice system. There are several ways, however, in which we feel the 
proposed bill could be strengthened. 

While the purpose of maintaining and dissemina,ting arrest records is presum- 
ably to enable the nation's law enforcement agencies to control and reduce crime, 
it is increasingly doubtful that this purpose is served bj- the practice. In light of 
all the information now linown about the effects of arrest records on those who 
bear them, the question arises: Is crime controlled or reduced if large numbers of 
people are prevented from getting jobs, licenses, homes, credit, or admission to 
schools because of their "records"? 

The criminal dossier of an arrested person continues to haunt him even though 
he has not been proven guilty of any crime. According to the F.B.L, law enforce- 
ment agencies make some 7.5 million arrests per year for all criminal acts, exclud- 



154 

ing traffic offenses. Of those arrested, more than 1.3 million are never prosecuted, 
and another 2.2 milhon are acquitted or have their charges dismissed. But they 
cannot escape their arrest records. See Crime in the United States, F.B.I. Uniform 
Crime Reports (1969). 

The F.B.I. Crime Reports tell a grim story of rising crime rates and staggering 
rates of recidivism, and of the rearrest of persons previously arrested. Could it be 
that the rising crime rates and the recidivism and the rearrests have something 
to do with the rising efficiency whith which arrest records are maintained and 
distributed? Are people forced into crime bj^ their inability to escape the record 
prison of acts which thej^ have never been proved to have committed? These are 
disturbing questions for which definitive answers gre hard to find, but they must 
underlie any consideration of the variety of proposals, including H.R. 13315, 
which have recently been made to restrict the maintenance and dissemination of 
arrest records. 

Most of our specific suggestions of ways in which H.R. 13315 could be strength- 
ened stem from our view that an official judgment made about a person on the 
basis of his arrest record is an unconstitutional pvinishment which makes him an 
outcast in our society. Accordingly, it is important to set forth the nature of the 
invidious discrimination suffered by an arrested person before turning to the 
remedies offered by H.R. 13315. 

I. THE MAINTENANCE AND DISSEMINATION OF THE RECORD OF A PERSON'S ARREST 
NOT RESULTING IN CONVICTION IS A SEVERE AND UNCONSTITUTIONAL FORM 
OF PUNISHMENT 

The probability of a black urban male being arrested at least once during his 
lifetime has been estimated to be as high as 90%. For white urban males, the 
figure is 60% and for all males, it is 47%. See President's Ccnmnission on Law 
Enforcement and the Administration of Justice, Task Force on Science and Tech- 
nology, Appendix J at p. 216 (1967), fewer than 25% of those arrested per year 
are found gviilty of the offense for which they were arrested and only a little more 
than another 25% are found guilty of any crime at all. (Crime in the United States, 
F.B.I. Uniform Crime Reports, at Table 17, p. 103 (1969)). Despite their in- 
nocence before the law, persons with an arrest record are subjected to the severe, 
continuing and pervasive punishment that attaches to the commission of a crime, 
namely the lifelong disabilities of a "criminal record." Furthermore, that dis- 
ability has the same damaging effect on a person's opportunity for employment 
and acceptance by society as a conviction record. See, e.g., President's Com- 
mission of Law Enforcement and the Administration of Justice, at pp. 75, 77 (1967) ; 
Hess & LePoole, Abuse of the Record of Arrest Not Leading to Conviction, 13 Crime 
and Delinquency 494 (1967) ; Report of the Committee to Investigate the Effect 
of Police Arrest Records on Employment Opportunities in the District of Columbia 
(hereafter "Duncan Report") (1967). Unlike the conviction record, however, the 
arrest record is an illegitimate offspring of the criminal justice system, and poses 
a grave threat to the entire scheme of constitutional protection which our system 
of justice offers to citizens innocent of legal wrongdoing. 

Indeed, the Supreme Court has held that ' ' [t]he mere fact that a man has been 
arrested has very little, if any, probative value in showing that he has engaged in 
any misconduct. An arrest shows nothing more than that someone probably sus- 
pected the person apprehended of an offense. When formal charges are not filed . . . 
whatever probative force the arrest may have had is normally dissipated." Schware 
v. Board of Bar Exatniners, 353 U.S. 232, 241 (1957). Furthermore, "arrest without 
more does not, in law any more than in reason impeach the integrity or impair the 
credibiMty of a [person]. It happens to the innocent as well as the guiltv." Michelson 
v. United States, 335 U.S. 469, 482 (1948), See also Pennex v. United States, 313 F. 
2d 524 (4th Cir. 1963). 

In considering the magnitude of the constitutional injurj^ suffered by a person 
whose record of an arrest not resulting in conviction is maintained and dissemi- 
nated by a law enforcement agency, it is necessary to surv^ey first, the effect of an 
arrest record on employment opportunities, and second, the constitutional viola- 
tions which occur when the record is maintained and disseminated. 

(a) The damaging effect of an arrest record on employment oppoi tunities 

Examples of employment discrimination against persons with arrest records 
are legion. A studv of the New York area employment agencies, for example, 
indicated that 75% would not accept for referral an applicant with an arrest 
record and no conviction. See Sparer, Employability and the Juvenile Arrest Record, 
at 5 (Center for the Study of Unemployed Youth, New York University), cited 



155 

in Menard v. Mitchell, 430 F. 2d 486, 490 n. 17 (D.C. Cir. 1970); see also Herr, 
Punishment By Record: A report to the Connecticut Legislature on First Offenders, 
at I, 7 (1970); Note, Retention and Dissemination of Arrest Records: Judicial 
Response, 38 U. Chi. L. Rev. 850, 864 (1970); Hess and LePoole, The Abuse of 
the Record of Arrest Not Leading to Conviction, 13 Crime and Delinquencj- 494, 
495 (1967). Despite administrative attempts to prevent the dissemination of 
arrest records, it has been found, for example, that employers in the District of 
Columbia have often obtained records from police sources, and that as a direct 
result job apphcants are not hired. See Duncan Report, at 6 (1970). The Chief of 
the Employment and Employee Relations Section of the District of Columbia 
Personnel Office told the Duncan Committee that many interviewers, reception- 
ists and employers automatically rule out arrestees whenever a risk is involved 
in the job. Id., at 10. A representative of the Work Training Opportunities Center 
of the D.C. Department of Public Welfare declared that employers' attitudes 
engendered a defeatism among unemployed persons with arrest records. Id., at 12. 
The Director of the local U.S. Employment Service in Washington stated that 
many employers required a "clean" arrest record as a condition of employment, 
and that the Service was able to place only about 15% of applicants with records 
of convictions or arrests. 

Since few employers are capable or willing to inv^est the time to investigate the 
circumstances surrounding an arrest, a policy of automatic rejection is a good 
excuse for an employer to avoid doing so. See Note, Retention and Dissemination of 
Arrest Records, 38 U. Chi. L. Rev. 850, 865 (1970); Note, Discrimination on the 
Basis of Arrest Recoids, 56 Cornell L. Rev. 470, 472 (1971). Other employers have 
stated that an arrest record indicates bad character, and that applicants without 
arrest records are therefore better qualified for that reason alone. Note, Mainte- 
nance and Dissemination of Arrest Records Versus the Right to Privacy, 17 Wayne 
State L. Rev. 995, 1005 (1971); Cornell Note, supra, at 471-72. 

Persons with arrest records are discriminated against by public as well as private 
employers. A California legislative committee, for example, found that applicants 
for post office jobs who had arrest records were automatically- disqualified because 
it was considered cheaper and simpler to hire applicants without records. (Hess 
and LePoole, supra, at — ). A Chicago prison emploj^ee was suspended because of 
an arrest due to mistaken identity seventeen years earlier when his record came 
to the attention of his supervisor. Id., at 496. 

Perhaps more disturbing than informal discrimination is the type of discrimi- 
nation against arrested persons which is promoted by state law. In 1969 New York 
enacted a law requiring the fingerprinting of securities industry employees. Of the 
first 20,000 persons fingerprinted, 361 were found to have arrest records, and 54 
lost their jobs. Approximately one-half of those with arrest records had never been 
convicted of any offense. Wayne State L. Rev. Note, supra, at n. 18. An estimated 
56% of all states, 55% of all counties, and 77% of all cities ask whether an appli- 
cant has ever been arrested on their civil service application forms. See Miller and 
INlarietta, Guilty But Not Convicted: Bffect of an Arrest Record on Employment, at 
n. 15 (unpublished studj' prepared at the Georgetown University Law Center, 
1972). Many more jurisdictions have vague character standards for civil service 
jobs which give hiring officials great discretion in rejecting applicants with arrest 
records. {Id., text accompanying Notes 144-159d). Finally, arrest records have ad- 
verse consequences under state law on applications for professional and occupa- 
tional licenses {Duncan Report, at 14-15; Cornell Note, supra, at 474-75; Chicago 
Note, supra, at 864; Hess and LePoole, supra, at 497), and on applications to 
surety companies for the bonding necessary for licensed employment. Hess and 
LePoole, supra, at 495 ; Cornell Note, supra, at n. 26. 

(6) The constitutional injuries inflicted by the maintenance and dissemination of 
an arrest record 

When these governmentally sanctioned employment discriminations are placed 
in a constitutional context, the seriousness of the injury caused by an arrest record 
becomes even clearer. As a general principle it is indisputable that conduct which 
has not been proved illegal may not be made the subject of criminal punishment, 
and that no supposed public interest can justify the imposition of a criminal 
penalty on a person who has not committed a crime. In Giaccio v. Pennsylvania, 
382 L^.S. 399 (1966), for example, the Supreme Court struck down a statute 
authorizing juries to impose court costs on persons accused of a crime ))ut acquitted 
at trial. Mr. Justice Stewart, concurring, recognized the simplicity of the principle 
governing the Court's decision: 

The imposition of punishment upon a person who has not been found guilty 
violates the most rudimentary concept of due process of law. 382 U.S. at 405. 

78-242 — 72 11 



156 

The unconstitutionality of punishment by arrest record is well illustrated by the 
facts and arguments in a leading case challenging the maintenance and dis- 
semination of an arrest record by the F.B.I. In Menard v. Mitchell, 328 F. Supp. 
716 (D.D.C. 1971), on remand from 430 F.2d 486 (D.C. Cir. 1970), the plaintiff, 
Dale Menard, a 26 year old Marine veteran, had been arrested for "suspicion of 
burglary" but was never convicted, indicted or even charged. Indeed, it was never 
established that the "crime" for which he was arrested, following a telephone 
complaint about a prowler in the neighborhood where Menard was sitting on a 
park bench, was ever in fact committed by anyone. 

Seeking removal of his arrest record from the files of the F.B.I., Menard was 
denied relief in the district court. On appeal it was held that since "information 
denominated a record of arrest, if it becomes known, may subject an individual 
to serious economic difficulties," 430 F. 2d at 490, Menard was entitled to a trial 
on the issue of complete expungement. Following the proceedings on remand in 
the district court. Judge Gesell ruled that while the F.B.I, may maintain the 
record of Menard's arrest for distribution to and use by federal, state and local law 
enforcement agencies for law enforcement and federal employment purposes only, 
all other distribution and uses of the record would be enjoined. Viewing the district 
court's decision as an inadequate protection of his rights, Menard has taken a 
second appeal in which he contends that he is being subjected to punishment by 
arrest record, thereby depriving him of equal protection, constituting a cruel and 
unusual punishment for his status as an arrestee, violating the presumption of his 
innocence, and invading his privacy. 

The equal protection argument is grounded on the simple claim that since 
Menard has not been convicted of a crime, he is entitled to be treated like other 
non-convicts. Instead, his arrest record classifies him with the guilt}^, and he is 
exposed to all the risks, disabilities and disadvantages that flow from maintenance 
and dissemination of his record. While Menard's own equal protection claim is 
strong, the burdens imposed by arrest records are likely to fall ev^en more heavily 
and unfairly upon members of ethnic minorities, see Gregory v. Litton Systems, Inc., 
316 F. Supp. 501 (D.C. Cal. 1970) (judicial finding that blacks are arrested 
substantiallj' more frequently than whites in proportion to their numbers), or 
groups whose unconventional life styles, unorthodox political views or social 
modes are offensive to community attitudes. See Hughes v. Rizzo, 282 F. Supp. 881 
(E.D. Pa. 1968) (use of arrest records to harass hippies). Indeed, the D.C. Circuit 
in its opinion remanding Menard to the district court noted that "[hippies] and 
civil rights workers have been harassed and literally driven from their homes by 
repeated and unlawful arrests. . . . Innocent bystanders may be swept up in 
mass arrests made to clear the streets either during a riot or during political 
demonstrations." 430 F. 2d at 494. 

The second element of the constitutional argument is that the maintenance of 
an arrest record constitutes cruel and unusual punishment. Since "[t]he due 
process clause . . . prohibits as cruel and unusual the punishment of status," 
Wheeler v. Goodman, 306 F. Supp. 58, 62 (W.D.N. C. 1969) (three-judge court), 
statutes which impose punishment because of a physical condition, such as 
narcotics addiction, Robinson v. California, 370 U.S. 660 (1962) or because of 
one s status as an indigent or a vagrant, Wheeler v. Goodman, supra, have been 
held unconstitutional. In Menard's case, there has been no legitimate judicial 
or other determination that his status as an arrestee resulted from any affirmative 
misconduct on his part. vSince he is even less accountable for his status as an 
arrestee than an addict or a vagrant, the injury to his character and reputation 
which stems from his arrest record is an even more cruel and unusual punishment 
than theirs. 

Nor can a legitimate public interest in identifying the guilty overcome the denial 
of due process and equal protection and the infliction of cruel and unusual punish- 
ment caused by the attaching a stigma to an innocent person. In Boorda v. Sub- 
versive Activities Control Board, 421 F. 2d 1142, 1143 (D.C. Cir. 1969), cert, denied, 
397 U.S. 1042 (1970), for example, the D.C. Circuit invalidated the disclosure 
provisions of the Subversive Activities Control Act on the ground that the Act 
was "constitutionally defective in allowing public disclosure of an individual's 
membership to be made without a finding that the individual concerned shares in 
anjr illegal purposes of the organization to which he belongs." Citing Boorda in ita 
Menard opinion, the D.C. Circuit held that "[t]here is a limit beyond which the 
government may not tread in devising classifications that lump together innocent 
with the guilty." 430 F. 2d at 492. 

Allied with the constitutional arguments advanced by Menard are two funda- 
mental and closely related principles of criminal law. These are the presumption of 
innocence, "that axiomatic and elementary principle whose enforcement lies at the 



157 

foundation of the administration of our criminal law," Coffin v. United States, 156 
U.S. 432, 453 (1894) ; see also Stack v. Boyle, 342 U.S. 1 (1951), and the reasonable 
doubt standard of proof which "provides concrete substance for the presumption of 
innocence. .-. ." In re Winship, 397 U.S. 358, 363 (1970). These principles 
occupy a pivotal position in our criminal justice system because of our belief that 
"a society that values the good name ... of every individual should not con- 
demn a nian for commission of a crime when there is reasonable doubt about his 
guilt." Id. Invoking these principles, an appellate court in the State of Washington 
recentl}^ ordered an acquitted defendant's fingerprints returned on the ground that 
"few things have been as basic to our legal system as the presumption of in- 
nocence." Eddy V. Moore, 9 Crim. L. Reptr. 2483, 2464 (Wash. 1971). 

Finally, the maintenance and dissemination of an arrest record is an unwar- 
ranted invasion of privacy. It has been held that disclosure of arrest records to 
employers constitutes an "unjustified invasion of privacy, particularly where 
innocent persons are arrested." Morrow v. District of Columbia, 417 F. 2d 728, 742 
(D.C. Cir. 1969). Other courts have gone so far as to hold that the mere retention 
of the criminal identification records of an acquitted defendant infringes on his 
right of privacv. United States v. Kalish, 271 F. Supp. 968, 970 (D.P.R. 1967); 
Eddy V. Moore, supra; Schulman v. Whitaker, 117 La. 704, 42 So. 227 (1906); 
Itzkovich V. Whitaker, 117 La. 708, 42 So. 228 (1906). In this spirit, the district 
court in Menard, relying on the landmark decision of Boyd v. United States, 166 
U.S. 616 (1886), declared that "systematic recordation and dissemination of in- 
formation about individual citizens is a form of surveillance and control which 
may easily inhibit freedom to speak, to work and to move about in this land, [and 
consequently that] the overwhelming power of the Federal Government to expose 
must be held in proper check." 328 F. Supp. at 726. 

II. THE RELIEF GRANTED BY H.R. 13315 TO PERSONS WITH ARREST RECORDS NOT 
RESULTING IN CONVICTIONS SHOULD BE BROADENED 

Since it is our view that the right to relief from the punishment and discrimina- 
tion inflicted by an arrest record arises to constitutional dimensions, we suggest 
that H.R. 13315 could be strengthened in a variety of ways. 

Specifically, we suggest (1) that the power of Congress to enforce the protection 
of constitutional rights gives it the authority to prohibit dissemination of arrest 
records by state and local as well as federal law enforcement agencies, whether 
or not they are federally assisted; (2) that the prohibition against dissemination 
should include dissemination to law enforcement agencies and personnel; (3) 
that the prohibition against dissemination and use should not be Umited to records 
of arrests more than two years old, but should be extended to any arrest resulting 
in the dismissal of charges, nolle prosse, or acquittal; (4) that the rehef provided 
by the bill should be available to any person with a record of an arrest not resulting 
in conviction, whether or not such a person has ever been convicted of a felony; 
(5) that the prohibition against dissemination should include dissemination to 
judges for examination prior to sentencing; (6) that the prohibition against dis- 
semination should not be subject to circumvention by a law enforcement officer 
upon his successful apphcation to a Federal court; and (7) that not only should a 
person with an arrest record not resulting in conviction be authorized to deny 
that he has a criminal record, but also the employer or prospective employer of 
such a person should be prohibited from asking as a condition of employment 
whether he was ever arrested. With these specific recommendations in mind we 
turn to several of the provisions of H.R. 13315. 

(a) § 3101 

The first section of the biU provides that arrest records may be disseminated 
only among cooperating law enforcement agencies. While we applaud the impli- 
cation that such records may not be used for employment, bonding, licensing, or 
related non-law enforcement purposes, we believe that the loose dissemination 
practices of many law enforcement agencies will render §3101 meaningless. 
Furthermore, there is no evidence that the use of arrest records not resulting in 
conviction is a compelling necessity to law enforcement agencies. Indeed, the 
Justice Department testimony presented beforethis subcommittee did not even 
attempt to substantiate the assumption that arrest records are vital for law 
enforcement. 

The F.B.I, provides a clearinghouse for the vast quantity of arrest data shared 
by law enforcement agencies throughout the nation. This clearinghouse has little 
or no effective security. Surveying an enormous array of the improper redissemina- 
tion of arrest records received by state and local police departments from the 



158 

F.B.I.'s Identification Division and from the new National Crime Information 
Center, Judge Gesell in Menard v. Mitchell, supra, observed that "the Bureau 
could not prevent improper dissemination and use of the material it supplies to 
hundreds of local agencies, [and that] the system is out of effective control." 
328 F. Supp. at 727. The record in Menard makes it abundantly clear that the 
F.B.I, is luiablo to control what happens to arrest records after they leave its files. 
The Identification Division has accepted any and all law enforcement agencies, 
however loosely defined, as authorized recipients of arrest records without further 
investigation. -See Deposition of Beverly E. Ponder, Chief, Technical Section, 
Identification Division of the F.B.I., I, at 43-45, 79-80, Menard v. Mitchell, 
supra; Trial Transcript, at 52-53, 238-39, Menard v. Mitchell, supra. What is 
perhaps even nwre disturbing is that in the face of overwhelming evidence of the 
improper dissemination and unauthorized use of such arrest data in recent years, 
the F.B.I, has withdrawn dissemination privileges from only six small town police 
departments in the last decade. 

Examples of the more recent violations about which the F.B.I, has done nothing 
include : 

The shockingly loose security and dissemination practices of the New 
York State Identification and Intelligence System which have been carefully 
documented by the State Comptroller (Report on New York State Identifica- 
tion and Intelligence System, Office of the State Comptroller, Division of 
Audits and Accounts, Report No. AL^St-29-71); 

Free access to the District of Columbia Police Department's fingerprint 
and mug files given to a wide variety of unauthorized persons, including news- 
paper reporters (International Association of Chiefs of Police, ^4 Survey of 
the Metropolitan Police Department (1966)); 

The discovery in 1967 that the District of Columbia Police Department 
■was routinely disseminating arrest records on request to a group of approxim- 
mately 50 businesses (Duncan Report, at 5-6). 
Redistribution in disregard of F.B.I, "rules" is by no means limited to these 
examples. The Duncan Committee found that in St. Louis and Baltimore, police 
records were regularly released for employment purposes, while in New York 
City, Los Angeles, San Francisco, Chicago, and Boston, influential employers 
could obtain records despite police policies or regulations to the contrary. (Duncan 
Report, at 9; see also Hess and LePoole, supra, at 498). These indications of wide- 
spread dissemination of arrest records by major police departments are ominous 
in what they suggest about the more than 5,000 police departments and sheriff's 
offices that engage in daily exchange of thousands of arrest records with the F.B.I. 
While the reckless dissemination practices of many law enforcement agencies 
are a sufficient reason to prohibit them from maintaining arrest records, there 
is also a lack of any demonstrated compelling necessity to use the records for 
law enforcement puri)oses. The classic iustification for maintaining an arrest 
record appears in Kolb v. O'Connor, 14 111. App. 2d 88, 142 N.E. 2d 818, 822 
(1957): Even a "minute possibility" that a person's arrest record may help to 
apprehend him and prevent or solve a future possible crime outweighs the "con- 
jectural harm" that might result from dissemination of the record. As we have 
seen— and an increasing number of courts have recognized — the harm infiicted 
by an arrest record is anj'thing but conjectural. On the other hand, the possibility 
that the record of a single arrest, without a conviction, will be of significant use 
in law enforcement is indeed minute. It is for this reason that thirteen states 
have, in varying degrees, recognized through legislation providing for expunge- 
ment or nullification that arrest records are far more harmful to the individual 
than helpful to the pohce. Menard v. Mitchell, 328 F. Supp. at 722. See, e.g., 
Conn. Gen. Stat. Ann., Sec. 29-15; Smith-Hurd 111. Ann. Stat., Jh. 38, Sec. 
206-5; Minn. Stat. Ann., Ch. 626.40; Cons. Laws of New York Ann., Civil 
Rights Law, Sec. 79-e. By the same token, a number of courts have ordered 
the complete expungement of an arrest record after explicitly finding that it 
lacked any compelling law enforcement value. Wheeler v. Goodman, 306 F. Supp. 
58, 65 (W.D.N.C. 1969) (three-judge court) vacated on other grounds, 410 U.S. 
987 (1970), re.afirmed on remand, 9 Crim. L. Reptr. 2312 (W.D.N.C. 1971); 
United States v.' Kalish, 271 F. Supp. 968, 970 (D.P.R. 1907) ; Eddy v. Moore, 
9 Crim. L. Reptr. 2463 (Wash. Ct. App. 1971). Finally, law enforcement authori- 
ties in several Western European countries conduct their investigations without 
the vise of arrest records, the maintenance of which is prohibited by statute. 

(b) ^3102 

Section 3102 includes an absolute prohibition against dissemination of the record 
of an arrest which is more than two years old, or has been certified for nolle prosse 
by the prosecuting attorney, or has been expunged under state law. While we are 



159 

in full support of such an absolute prohibition — which presumably includes the 
exchange of arrest data among law enforcement agencies — we would not limit it to 
arrests more than two years old or to those certified for no prosecution. For all 
the reasons we have stated above, an arrest record has no evidentiary value when 
it does not result in a conviction, and its dissemination should not be arbitrarily 
permitted under some circumstances and prohibited under others. Indeed, a two 
year rule is particularly ill conceived, since an acquittal or dismissal of charges 
by a magistrate or judge will often occur within a two year period following a 

dragnet arrest of demonstrators, Sullivan v. Murphy, Docket No. (D.C. 

Cir. Oct. — , 1971); United States v. McLeod, 385 F. 2d 734 (5th Cir. 1967), or 
loiterers, Papachristou v. City of Jachsonville, 40 U.S.L.W. 4126 (Feb. 22, 1972); 
Smith V. Florida, 40 U.S.L.W. 4221 (Feb. 22, 1972), or following the arrest of a 
person without probable cause, e.g.. White v. United States, 271 F. 2d 829 (D.C. 
Cir. 1959), illegal grounds, e.g., Hughes v. Rizzo, 282, F. Supp. 881 (E.D. Pa. 1968). 
In all of these cases, as well as others where the grounds for an arrest may have 
been more substantial but the results were the same, a two-year rule Uke the one 
in H.R. 13315 constitutes an arbitrary and invidious discrimination against the 
arrested person who must suffer the punishment of his record until such time as 
he qualifies for relief under the statute. 

Subsection (c) of section 3102 permits the dissemination of an arrest record, 
otherwise prohibited, if the person concerned has a prior felony conviction. We 
are opposed to this disqualification. First, it imposes an additional burden on 
persons who are the victims of the common poUce tendency to "round up the 
usual suspects" on the basis of their conviction records whenever an unsolved 
crime has been committed. Such persons are often the subjects of police sur- 
veillance and are sometimes arrested "for questioning" and then discharged. 
Indeed, as Herbert Miller pointed out in his testimony before this subcommittee 
on March 16, 1972, some jurisdictions require persons with conviction records to 
register with the police. The second reason why the prior conviction disquaUfica- 
tion should be eliminated from the bill is that a conviction record is itself a sub- 
stantial civil disabihty which need not be augmented by a subsequent arrest 
record not resulting in conviction. 

Subsection (d) of section 3102 introduces an additional limitation on the relief 
accorded by H.R. 13315 by providing that sealed arrest records may be maintained 
and used by courts. Presumably this subsection contemplates the use of arrest 
records b}' judges in making probation and sentencing decisions — a use which 
we oppose for the same reasons as the American Bar Association. In its 1970 
report, "Standards Relating to Probation," the A.B.A. Projection on Standards 
for Criminal Justice recommended that the prior criminal record to be used for 
probation decisions should "include only those charges which have resulted in a 
conviction." In reaching this conclusion the Report pointed out that "[ajrrests, 
juvenile dispositions short of an adjudication, and the like, can be extremely 
misleading and damaging if presented to the court as part of a section of thfe report 
which deals with past convictions." This recommendation does not constitute 
a sharp departure from the general standards for probation and sentencing 
decisions which have been laid do\vn by the Supreme Court. In Townsend v. 
Burke, 334 U.S. 736 (1948), the Court reversed a court of appeals decision up- 
holding a sentence which was imposed on the basis of patently erroneous assump- 
tions of criminal behaviour drawn from the existence of several prior arrests not 
leading to convictions. Townsend was reaffirmed this Term by the decision in 
United States v. Tucker, 40 U.S.L.W. 4122 (Jan. 11, 1972). 

(c) §§ 3103 and 3104 

These two sections provide for the inspection of an arrest record by its subject, 
and for the remedy of an injunction against the maintenance of an erroneous 
record or its improper dissemination. These provisions mitigate the harm which 
we believe will result from the various limitations discussed above on the reUef 
provided by the bill. On the other hand, since we are opposed to these limitations 
because we believe that the maintenance and dissemination of any arrest record 
not resulting in conviction is unconstitutional, we do not feel that the right to 
correct and inspect an arrest record is a necessary element of the unconditional 
relief which H.R. 13315 should be amended to provide. We would, however, 
support the inclusion of a statutory cause of action to enjoin the improper dis- 
semination of an arrest record, as provided in Section 3104. 

{d) § 3105 

Section 3105 would enable a law enforcement agency to petition the District 
Court for an order authorizing the maintenance, dissemination and use of an arrest 
record otherwise prohibited by the bill. We have serious reservations about the 



160 

constitutionality of such a provision. At the least, it should be made clear that 
the "compelUng public interest" standard for determining whether a court order 
should issue could be met only in the following way: 

First, the petitioning law enforcement agency would have to show by clear 
convincing evidence that the person arrested engaged in the action charged by 
the arrest. Virtually all courts which have considered the question have held 
that the legitimate law enforcement use of an arrest record, if any, depends 
entirely on th- likelihood that the person arrested engaged in the action charged 
by the arrest. Wheeler v. Goodman, 306 F. Supp. 58, 65 (W.D.N.C. 1969). See also 
Morrow v. District of Columbia, 417 F. 2d 728, 743 (D.C. Cir. 1969); Kowall v. 
United States, 9 Crim. L. Reptr. 2482 (W.D. Mich. 1971); United States v. Kalish, 
217 F. Supp. 968 (D.P.R. 1967); Eddy v. Moore, 9 Crim. L. Reptr. 2463 (Wash. 
Ct. App. 1971). Cf. Menard v. Mitchell, 430 F. 2d 486, 494 (D.C. Cir. 1970); 
Henry v. Looney, 317 N.Y.S. 2d 848 (Sup. Ct. 1971); In re Smith, 310 N.Y.S. 
2d 617 (Fam. Ct. 1971). Unless this can be shown by clear and convincing evi- 
dence, therefore, an arrest record has no greater value for law enforcement pur- 
poses than does an entry in the census lists or the telephone directory. 

Second, the petitioning agency would have to show that the record it sought to 
use is particularly probative in revealing a pattern of serious criminal conduct. 
To do so it would have to show that the prior arrest indicated a modus operandi 
in conjunction with a subsequent offense. A prior arrest for a minor offense or 
an unrelated offense, for example, would not satisfy the standard even if the 
arrestee had engaged in the action charged. 

(e) § 3106 

Section 3106 authorizes a person whose arrest record may not be maintained, 
disseminated, or used under the prohibition of section 3102 to deny that he was 
ever arrested. We strongly endorse this innovative provision as an important 
step toward eliminating the employment disabilities which stem from an arrest 
record. We suggest, however, that there are substantial pohcy reasons and 
constitutional grounds for going even further and prohibiting employers from 
asking whether a person has ever been arrested. 

At least one Federal court has held that an employer violates Title Yll of the 
Civil Rights Act of 1964 by asking a black applicant or employee whether he has 
ever been arrested, since "negroes are arrested substantially more frequently 
than whites in proportion to their numbers." Gregory v. Litton Systems, Inc., 
316 F. Supp. 401, 402 (CD. Cal. 1970). The court noted that its conclusion was 
not at all speculative: 

The evidence on this question was overwhelming and utterly convincing. 
For example, negroes nationally comprise some 11% of the population and 
account for 27% of reported arrests and 45% of ari'ests reported as "suspicion 
■arrests". Thus, anj^ poUcj- that disqualifies prospective employees because 
of having been arrested once, or more than once, discriminates in fact against 
negro appHcants. This discrimination exists even though such a policy is 
•objectively and fairly apphed as between applicants of various races. A 
substantial and disproportionately large number of negroes are excluded 
from employment opportunities by . . . [an emploj^er's] policy of disquali- 
fying . . . arrested persons from employment. . . . 316 F. Supp. at 402-03. 
Studies of the discriminatorj'^ effects of arrests and arrest records on racial mi- 
norities, including Mexican-American and Indians as well as blacks, substantiate 
the claim upheld bj^ the court in Gregory that an inquiry about an arrest record 
constitutes an employment discrimination on racial grounds within the terms of 
Title VII. See, e.g. The Challenge of Crime in a Free Society, A report by the Pres- 
ident's Commission on Law Enforcement and the Administration of Justice, at 
44 (1967); A Report on the Spanish Surnamed and Migrant Population in Iowa, 
Iowa State Advisory Committee to the U.S. Commission on Civil Rights, at 30 
(Sept. 1970) ; Mexican-Americans and the Administration of Justice in the Southwest, 
U.S. Civil Rights Commission, at 7 (1970). 

Furthermore, the Supreme Court lost Term gave an extremely broad interpre- 
tation of employment discrimination within the terms of the federal prohibition. 
In Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971), the Court speaking through 
Chief Justice Burger held that Title VII "proscribes not only overt discrimination 
but also practices that are fair in form, but discriminatory in operation. ... If 
an employment practice which operates to exclude Negroes cannot be shown to 
be related to job performance, the practice is prohibited." In the case of an employ- 
ment practice of inquiring into an applicant's arrest record, the court in Gregory 
found that "[t]here is no evidence to support a claim that persons who have suffered 
no criminal convictions but have been arrested on a number of occasions can be 



161 

expected, when employed, to perform less efficiently or less honestly than other 
employees." 316 F. Supp. at 402. 

If persons from racial minorities cannot be asked by employers whether they 
have ever been arrested, the bill under consideration should go bej'ond the terms of 
Title VII and extend the prohibition to questions propounded to any person with- 
out regard to his race. Arrest record discrimination is ultimately based upon status, 
not race. In light of this analysis, we urge the subcommittee to amend section 3106 
of H.R. 13315 by adding a provision that would prohibit employers and others 
from asking any person whether he has ever been arrested. It should be noted that 
the State of Illinois adopted such a provision last j^ear. See Illinois Fair Employ- 
ment Practices Act, Public Act No. 71-1552, section 7(e) , approved September 17, 
1971. 

(/) § S107 

The penalties provided in section 3107 are vital to the enforcement of any stat- 
ute which emerges from H.R. 13315. We would propose extending the criminal 
penalties to private persons or agencies who circumvent the prohibition of the 
statute by refusing to employ, bond, or license a person solely on the ground that 
such person had been arrested but not convicted and had so responded in a ques- 
tion propounded to him in an employment, bonding or license application. Alter- 
natively, a person asked by an employer, or a bonding or licensing agency, whether 
he had ever been arrested could be authorized to obtain injunctive relief or a cease 
and desist order against the person or agency asking the question in an employ- 
ment, bonding or licensing application. 

Thank you for the opportunity to appear before the subcommittee today. 

Mr. Neier. Thank you. I would like to very briefly summarize 
our reasons for strongh' endorsing the legislation that you are now- 
considering. We have made a number of suggestions for amendments 
to this legislation, but they don't in any way mitigate our belief that 
this is a very important bill. It is an excellent bill and will do much to 
further the interests of indi\dduals in their own liberties and of the 
society as a whole. 

I think that there are two basic interests that are at stake in any 
consideration of legislation of this sort. One is the interest of the 
individual who is charged with a crime and subsequentl}" is not con- 
victed. That individual has an interest in benefiting from the presump- 
tion of innocence. 

Our entire legal system is built on that presumption and it seems 
to us extremely important that presumption not be undermiiTed b}' 
having a person's arrest damage him after there has been a failure to 
follow the arrest with a conviction. 

The other interest, the society's interest in this instance coincides 
with the individual interest. The society's interest is in reducing and 
controlling the enormous crime problem that we have in our society 
today. That interest, I believe, is served if the society can see to it 
that we do not have so very many persons as we have today effectively 
excluded from the mainstream of society', because the}" have in some 
way acquu'ed a record. Such records disable them from gaining access 
to the benefits that society has to offer. 

The previous witness made the point, and I very strongh' agree, 
that emploj'ment is the best possible form of rehabihtation. I don't 
think there is any serious question about that. If a person is unem- 
ployed and cannot gain access to the benefits of our society, that per- 
son is going to exist in some fashion. He is going to have to fend for 
himself. That person becomes a danger to our society. 

You questioned the previous witness about the opposition of the 
sa^nngs and loan associations to this kmd of legislation. I would like 
to respond to the kind of concern that they have expressed, because 
I think it is a concern that a number of people have about this kind 
of legislation. 



162 

Savings and loan associations, as other emploj^ers, are fearful. They 
are worried about employing persons who may have arrest records. 
They think they could secure greater safety for themselves if they 
could exclude those persons from employment within their institutions. 
But those very same people who are the officers and the staff of savings 
and loan associations, the verj- same people who are the depositors 
in those banks, the very same people who may be the owners or in- 
vestors in any institution, live their lives not just within the context 
of that institution. They also have homes. The}^ also travel through the 
streets of our cities. They may secure greater safety for themselves 
within the particular institution in which they work or in which they 
deposit their money by excluding people with arrest records. But 
then they have helped to create a criminal class within our society 
by having people excluded from employment. Those same people 
may threaten them in their homes, or threaten them as they travel 
through their streets. 

I wonder, then, how much they have achieved. We don't live in a 
society in which one can secure ultimate security for oneself by 
shutting out any person who might pose a danger from one aspect of 
our society and then hope to have that security'' extended over into 
the other aspects of our lives. 

We live, all of us, very complicated lives. If we shut out a large 
group of people from one segment of our lives, they are still going to 
exist in the other segments of our lives and pose dangers to us. We 
cannot achieve any safet}^ for ourselves by barring people from em- 
ployment only to have them mug us on the streets as we walk home. 

Our need is to integrate all of the members of our society by en- 
abling them to take advantage of the benefits of society. The}'' need 
to secure homes and licenses, and jobs and other things which will 
tend to stabilize the society and mitigate our immense crime problem. 

I sometimes wonder how much our increasing crime rates can be 
attributed to the increasing efficiency with which we disseminate 
people's records and permanentl}* imprison them b}- their own records. 

The legislation that you have before you would go a very long way 
to dealing with this problem. It Avould reaffirm the presumption of 
innocence and help the society as a whole by enabling a larger group 
of persons than presently to integrate themselves into society by 
gaining access to jobs and licenses, and other societal benefits. 

We think that some improvements can be made in this legislation. 
First, with respect to section 3101, the legislation continues to provide 
for the dissemination of arrest information among law enforcement 
agencies. I think it is important to realize that we have a very large 
number of law enforcement agencies in the United States — many 
thousands of agencies. If arrest records can be disseminated among 
these agencies it is going to be extremely difficult to prevent them 
from being further disseminated for other purposes. 

If any sheriff's office or smalltown police department can gain 
access to some records that the FBI has collected, it is extremely 
difficult to see to it that the record is not further disseminated to, 
sa^^, a credit compan3^ In turn the agencA^ will engage in other dis- 
semination of this information, for purposes of profit. 

Mr. Edwards. Even though it is made a crime? 

Mr. Neier. Well, as I understand this legislation, it is not made a 
crime insofar as private persons are concerned. The officer of a credit 



163 

bureau would not be guilty of a crime if he disseminated this 
information. 

Therefore, it would be necessary to find out from which law enforce- 
ment agency and from which person within the law enforcement agency 
a credit bureau had obtained arrest information in order to be able to 
use the criminal sanctions that are contained in this legislation to 
control the release of the data. 

Given the multiplicity of law enforcement agencies in the country, 
that would be extremely difficult. I think if one were to extend the 
penalty provision of this legislation to private agencies which engaged 
in the dissemination of this information, it would be possible to bar 
arrest records from being circulated widely to employers and others in 
a position to confer or deny various benefits. 

So our prime recommendation would be the extension of the penalty 
provisions of the legislation. 

Then with respect to section 3102, subsection (a)(1) provides that 
an arrest or information about an arrest may not be disseminated more 
than 2 years after the date of arrest and concerning which there is no 
prosecution pending in a court. 

The first suggestion I would offer A\^th respect to that section is that 
the language be changed to read instead of "relating to an arrest which 
occurred more than 2 years before the date of such dissemination and 
concerning which there is no prosecution pending," to make it read 
"dissemination or concerning which there is no prosecution pending 
m a court." 

Bear in mind that a law enforcement agency makes a great many 
copies of any arrest record. There was a study that was made of the 
Oakland Police Department at one point, and I believe that something 
like 71 copies of an arrest record were made by that police department 
for its own purposes. 

If that information is around for a period of a couple of years and 
available for dissemination to other law enforcement agencies within 
a period of a coui)le of years, there is a very large possibility that the 
information vdW get out and will operate to harm people m their em- 
ployment opportunities. To effectuate the purposes of this legislation, 
we should take every possible step to prevent this information from 
getting out. 

Let me turn now to sections 3103 and 3104. If the recommendations 
that I have made were adopted, and arrest information was not even 
disseminated to law enforcement agencies, or private agencies which 
engage in the dissemination of this information became subject to 
the criminal penalt}^ pro^dsions, I think that there would be less of a 
need for the injunctive remedy that is set forth here. Nevertheless, 
I think that it would be desirable to have such remedy in order to 
enjoin any dissemination of an arrest record which was forbidden by 
this legislation. 

I think that is as much as I should include in this opening statement. 
And I would be happy to respond to any questions you may have or 
any comments you may make. 

Mr. Edwards. Thank you very much, Mr. Neier. 

I think I would like to \ueld to Mr. Wiggins at this point. I am very 
interested in the line of questioning that he was pursuing with 
Mr. Dale. 

I will not limit you to that, but you can go ahead. 



164 

Mr. Wiggins. You were present and heard the discussion, so let 
me just invite your comments on that discussion. 

Mr. Neier. I would take the line that was implied in the counsel's 
questioning. That is, I believe there is an overriding public interest 
in kno^^•ing that law enforcement agencies have made an arrest in 
conjunction ^vith crimes. 

I think the public would want to know if there are 1,000 robberies 
committed in a community, that 800 arrests have been made in con- 
junction with those robberies, and 550 of those arrests resulted in 
convictions. That would be an important way through which the 
public could measure the effectiveness of its law enforcement ap- 
paratus, 

I don't believe that there is a comparable overriding public interest 
in knowing the identity of a particular person who has been arrested, 
charged with a crime, and who has not been convicted. 

I think that person's right to the presumption of innocence is 
effectively violated if that person has been widely identified publicly 
and in that way barred from access to various societal benefits. 

Mr. Wiggins. I gather then that you would hold the position that 
we could consistently with the first amendment deny to a news gather- 
ing agency the name of a person arrested? 

Mr. Neier. I think one could restrain law enforcement agencies 
from furnishing to newspapers that information. I would not go so 
far as to say if a newspaper could find out the information on its own 
that the first amendment would permit one to take direct action 
against the newspaper. 

I think it is comparable perhaps to the provisions in the Freedom of 
Information Act. The Freedom of Information Act allows any member 
of the public to gain access to a great deal of governmental information, 
but it does not encompass private information about particular 
individuals. 

At the point an arrest has been obtained, I think that is information 
which is analogous to the private information that is precluded from 
public dissemination under the Freedom of Information Act. 

Mr. Wiggins. The general theory of that response is that the inter- 
vention of a private individual or agency purges the governmental 
unit from involvement in the ultimate disposition of the information 
relative to an arrest. That may not truly reflect your point of view. 

Mr. Neier. I was only making the point \vith respect to the news- 
paper. I think the first amendment does bar the Government from 
•engaging in direct action against the press to bar the press from pub- 
lishing information. 

I do think that it would be appropriate to have this legislation 
reach out to cover, say, credit bureaus or other private agencies which 
engage in the sale of arrest data for purposes of profit. 

Mr. Wiggins. Your testimony is to the effect that the simple main- 
tenance of arrest data, standing alone, may well be unconstitutional 
for several reasons. 

Mr. Neier. Yes. 

Mr. Wiggins. And one of those reasons involves the argument 
based upon the eighth amendment, cruel and unusual punishments, 
and another is the 16th amendment, the argument involving discrim- 
ination, placing emphasis on the fact that racial minorities are often 
.adversely affected disproportionately to their numbers in our society. 

Mr. Neier. Yes. 



165 

Mr. Wiggins. Does the intervention of a private agency, namely, 
the employer, who imposes the ultimate "punishment" of failure to 
hire, purge the involvement of the governmental agency in simply 
supplying data? That is, it is not the Government that imposes the 
punisimient — if that word is defined to mean the denial of employ- 
ment — at least not directly. The Government is only a step in the 
process which results in that. 

Do you think that the intervention of the private agency would 
weaken your constitutional argument? 

Mr. Neier. I don't believe so. I think that the information cannot 
be readily available to private agencies unless the Government plays 
a role in the dissemination of this information. Therefore, because 
the Government's role is inextricabh' linked with the harm that 
would occur to particular indi\dduals, the constitutional argument 
Avould have to apph" to the Government's role in the maintenance 
and dissemination of this information. 

Mr. Wiggins. Just as an aside, I think your fifth and 14th amend- 
ment arguments are stronger than the eighth amendment argument, 
and, frankly, even in that field I beUeve that we would be probably 
operating under the section on implementing the constitutional 
guarantees rather than prohibiting an unconstitutional act. 

Now, that is making a judgment 

Mr. Neier. I think I would concur with that judgment. 

Mr. Wiggins. Yes. 

I would like also to comment upon the easy transferability of the 
presumption of innocence into the private sector of emplojTiient, and 
suggest that one should not do that. The presumption of innocence is a 
concept very important to our system in a criminal trial. When a 
person seeks employment he is not involved in a criminal trial, and one 
cannot just easily transfer those concepts which are important in a 
criminal trial to the process of employment. 

Mr. Neier. Well, Congressmen, in today's world the lifelong con- 
sequences of an arrest record with respect to em.ployment opportuni- 
ties are, I would suspect, in the great majority of cases, far more serious 
consequences than those which might come about through the criminal 
process itself. 

If a person were convicted of a crime for which he had been arrested, 
the person might get a suspended sentence, he might get a short-term 
sentence, and once having paid the particular penalty that person would 
be free of any consequence in the criminal process itself. 

But a person who has been arrested and who may be innocent and 
may be acquitted of the charge, but then has the lifelong sentence of 
being disabled in securing employment opportunities suffers far more 
severely than he would at the hands of the criminal justice system 
itself. 

Mr. Wiggins. I understand that. I take it that the posture of a 
person who has been charged, but acquitted, is that the bell has been 
rung but it has no particular meaning. 

Mr. Neier. That is right. 

Mr. Wiggins. There was a fact incident in his life that was not 
criminal. Of course, we don't prohibit — indeed, I presume we encour- 
age — inquiry into noncriminal conduct by prospective employers. 

Mr. Neier. Yes, sir. 



166 

Mr. Wiggins. For example, an applicant's general reputation for 
paying bills might be very germane. His general reputation may be 
undeserved, but he is not entitled to a presumption of innocence from 
that charge when dealing with his employer. 

If a person has a reputation for slovenliness, that might be very 
germane to an applicant's prospective employment, but it is not crim- 
inal conduct, yet we permit inquiry into that. But we do not, under 
this legislation, permit inquiry into another incident in his life which 
also is not criminal. 

Mr. Neier. I tliink the basic principle is that constitutional prin- 
ciples apply as against the Government. The Government is restrained 
from denying a person due process of law. The Government is restrained 
from interfering with a person's first amendment rights. I think it is a 
proper extension of constitutional principles to say that when the 
Government has made a mistake, or when the Government has charged 
a person with a crime, but then hasn't been able to prove its case, due 
process of law is served by not allowing that mistake by the Govern- 
ment to injure the person for the rest of his life in activities outside of 
the judicial process itself. 

Mr. Wiggins. That argument is made all through your testimony. 

Mr. Neier. I think it would not apply just to criminal actions. 
Let's take a schoolchild who is charged with being a truant and there 
has been no adjudication within a school system that a schoolchild 
has in fact been truant. 

In another setting, I would be arguing that an employer should 
not be able to gain access to that unproved charge. If I were testifying 
before the Armed Services Committee with respect to draft legisla- 
tion, I would be arguing that if a person has been charged with 
something within the military, not a criminal action, but something 
untoward, and that charge has not been proved, that charge should 
not be accessible to an employer. 

Wherever the Government has not sustained a burden of proving 
a particular charge that is made against a person, I believe that our 
constitutional principles, if they are to be made meaningful in the 
context of today's world, would bar that information from being 
disseminated. 

Mr. Wiggins. That involves a transfer of all of the rules of evidence, 
the presumption of innocence, the proof beyond a reasonable doubt, 
which are so very important in a criminal proceeding, over into the 
private sector and subjecting those standards 

Mr. Neier. Only to the extent that the Government has become 
involved in the first instance. Let me say that an employee has been 
charged within a private employment context with stealing money 
from his employer. No adjudication has taken place within the firm. 
No criminal action has been taken. The person then applies for another 
job. It doesn't bar the employer from telling that to another em- 
ployer. It is only as against the Government. 

Mr. Wiggins. Yes, but if the Government should fire a person, 
or if my office were to fire a secretary simply because she didn't 
get along with other secretaries, would a subsequent employer be 
barred, in your opinion, from asking her the question: ''Why did you 
leave your other employment?" 

Mr. Neier. I don't believe so. But I w^ould still, even in that 
context, impose greater restrictions upon the Government than upon 
anybody else. 



167 

Mr. Wiggins. Well, sir, I am going to read more carefully your 
testimon3\ It is obviously well researched, and I find the presentations 
of your organization always to be most interesting, and I even occa- 
sionally agree with them 

Mr. Neier. I am glad of that. 

Mr. Wiggins (continuing). Though I try not to let that fact be 
widely knowTi. 

Thank you very much for your testimony. 

Mr. Neier. Thank you. 

Mr. Edwards. The' matter of the police blotter bothers me. What 
do you envisage as the appropriate way of handling a situation where 
a person is arrested for burglary, his name is entered in the police 
blotter as he is being booked, and a reporter standing outside subse- 
quenth" looks at the blotter? 

Mr. Neier. I don't believe that the reporter should be allowed to 
see a police blotter. A lot of newspapers publish logs of arrests in 
their communities. If this legislation were to go into effect, the FBI 
and other law enforcement agencies would be taken out of the business 
of making available arrest data to private institutions. However, the 
publication of these logs would result in credit bureaus monitoring of 
newspapers in the country to accumulate that information. They 
would simply use that as a substitute for the access to law enforce- 
ment records in a more systematic basis than they have today. 

It is my impression that there are some kinds of arrest data which 
credit agencies can't get from law" enforcement agencies today. 
Therefore, as it is, they monitor the logs of various newspapers which 
publish this information. Allowing that method for gathering this 
information would defeat the purposes of this bill. 

I believe that the information should only be public in a statistical 
sense or in a nonindi\4dually identified sense when the person has 
been arrested, but has not yet been convicted of any crime. 

Mr. Wiggins. May I interrupt just a minute? 

Mr. Edwards. Yes. 

Mr. Wiggins. Would that opinion still hold with regard to docket 
information in a court setting? 

Mr. Neier. I think that there is a sufficient interest in the right to 
a public trial so one should not be able to bar the press from covering 
courtrooms as such. To the degree that docket information is abso- 
lutely necessary to operate the system of public trials, I think that 
there would be a right of the press to gain access to that information. 

I think the consequences of allowing that, but not allomng the 
access to the poHce blotter would be that only those matters which 
are really newsworthy would be covered by the press. We would not 
have these logs shomng the arrests of the particular night which would 
become the substitute systematic information that would really be 
usable by a credit bureau. 

I think a credit bureau which had to depend on actual newsstories 
about crimes and actual newsstories of trials, would not be able to 
effectively retail arrest data. 

Mr. Edw^ards. In other words, the newspaper could get the news 
information by being present in court when the man was being charged. 

Mr. Neier. I think in practical terms that would not provide 
enough data to really be usable by agencies engaged in the sale of 
this information. 

Mr. Edwards. Mr. Zeifman. 



168 

Mr. Zeifman. Mr. Neier, in the last Congress this same subcom- 
mittee had before it a proposal for preventive detention. At that time 
one of the strongest objections of the ACLU to the procedures set 
forth in that proposal was a determination of probable guilt which 
your organization regarded as a lifetime stigma. Yet I noticed that 
on page 11 of your prepared statement you are recommending that the 
subcommittee with respect to this procedure interject, prior to the 
conviction, a procedure which would allow an adjudication of the fact 
that there was clear and convincing evidence that the person engaged 
in the action charged by the arrest. 

If such a person were so adjudicated and were ultimately acquitted, 
would not the procedure that you are recommending actually impose 
on him an even greater stigma than the stigma that came with the 
original arrest? 

Mr. Neier. First, let me respond by calling your attention to the 
introductor}^ sentences to that portion of my testimony on page 11. 
If you look at the bottom of page 10, you will note that I state that 
w^e have serious reservations about the constitutionality of such a 
provision. I must say that the more I think about such a provision,, 
the more reservations I have about its constitutionality. 

What we were trying to address ourselves to in that statement was 
the provision in section 3105 of this bill. Section 3105 does allow a 
procedure whereby the Attorney General or an officer of a law 
enforcement agency could apply to a court to allow the dissemination 
and maintenance of an arrest record. 

My testimony on page 11 seeks to limit the ways in which such an 
application would have to be made and to restrict it to the most 
narrow of circumstances imaginable. At the same time we confess 
that even with those very narrow exceptions which might exist, we 
would still have serious doubts as to the constitutionality of any 
such provision. 

Mr. Zeifman. In the bill as introduced in section 3105, the 
standard set forth is merely one of compelling public interest and it 
says nothing about convincing evidence of guilt. 

Are there not some cases where there are different considerations 
in the sense that the public might have a compelling interest in a 
more searching investigation of the arrest background of an applicant 
for a highly sensitive, highly secure position, which would allow for a 
judicial determination of compelling public interest, but not allow 
into that determination the determination of probable guilt? 

Mr. Neier. We were trying to cu-cumscribe the standard of 
compelling public interest even further by suggesting that even 
where there is a compelling public interest, there ought to be some 
further demonstration that a person arrested had engaged in the 
action which was charged by the arrest. The sort of thing that I was 
thinking of in ^\^:■iting this section of the testimony, would be a 
situation in which a compelling public interest standard was satisfied. 

That is, suppose there was an extremely sensitive position, the 
most sensitive one could imagine, somebody who could press the but- 
ton which would set us all into a nuclear holocaust. And then sup- 
pose a person applied for the job and had an arrest for which the per- 
son was acquitted, say, by reason of mental incompetence. 

In other words, everything was admitted about the action charged. 



169 

The person said he had engaged in the charge but was acquitted be- 
cause of mental incompetence. That was the rarified exception I had 
en\'isioned in drawdng up this particular section of the testimony. 

Frankly, I would rather not see any such provision in the legisla- 
tion. I think that the rarified exception is really such an exceptional 
circumstance that it is not a real circumstance. It is an imaginary 
kind of thing, a hobgoblin with which one can torture onself about 
legislation of this sort, but is best not included in the legislation. 

I suspect were there that kind of compelling public interest there 
would be such a searcliing examination of the person's past that re- 
gardless of any arrest information, if there was some untoward as- 
pect of the person's life that would emerge from the kind of searcliing 
examination that would be made. We would be better off not en- 
cumbering this legislation mth any pro\dsion of that sort at all. 

Wliichever way it is done, I think that there would be grave con- 
stitutional reservations about such a procedure. 

Mr. Zeifman. Thank you. 

Mr. Wiggins. Do you regard the ultimate ^vrong here to be the 
dissemination of information or the use of that information improperly 
by, let's say, a prospective employer? 

Mr. Neier. I think the two are inextricably linked. Once it is dis- 
seminated, I think it is virtually inevitable that every person is going 
to try to protect his particular business from a person about whom 
there is any cloud of suspicion. 

Mr. Wiggins. Well, it would seem to me that if the ultimate evil 
is the improper use to which the information may be put, we perhaps 
ought to attack that directly by amending the 1964 Civil Rights Act 
and adding as one of the provisions that discrimination is improper 
on the basis of a prior arrest for which there was no conviction. That 
would cover everything, if a person could prove, of course, that that 
was his reason for the denial of his employment. 

Would you support that kind of legislation? 

Mr. Neier. I would support that and I would say that I would 
fear for the effectiveness of such legislation unless it was coupled' with 
a prohibition upon dissemination. 

If I apply for a job and I have an arrest record, and my employer 
can gain access to the arrest record, the employer does not have to 
give me reasons for turning me down for that employment. It would be 
virtually impossible for me to prove that the arrest record was in fact 
the basis for denying me the particular job. 

And so, while I think that a prohibition on use would be very 
important in reaching some of the gaps that would be left b}^ this 
bill, I think just a prohibition on use would leave even greater gaps. 
One could not in any way show that the use was improper in a par- 
ticular circumstance or that the use of an arrest record had been the 
determining factor in whether a benefit should be given or denied. 

Mr. Edwards. What about conviction records? Do you disagree 
with the procedures used in Washington, D.C., where a prospective 
employer can get for $3 a conviction record of the applicant? 

Mr. Neier. I disagree very strongly. But I think that the more seri- 
ous infringement is in this area where we are talking about arrest 
records, because at least with the conviction record we are talking 
about something a person actually did. 

When we talk about arrest records, we have no idea whether the 
person actually did engage in the action. The person is entitled to 



170 

have us assume that he did not engage in the action. I think there are 
social considerations which may be almost as great in barring the use 
of conviction records, but I don't believe there are comparable consti- 
tutional prohibitions on the use of conviction records. 

Mr. Edwards. Aren't conviction records matters of public informa- 
tion? 

Mr. Neier. As I say, I don't believe there are any comparable con- 
stitutional restrictions that would be applied to the dissemination 
and use of conviction records. I would still hope that there would be a 
general realization that we are doing ourselves a great deal of harm by 
denying people who have, in fact, committed crimes and have been 
convicted of committing crimes from integrating themselves into 
society. 

Mr. Edwards. Thank you. 

Mr. Garrison? 

Mr. Garrison. I want to follow up just briefly on the question 
concerning police blotters and other court records. 

As I read the definition of criminal arrest records contained on 
page 8 of the bill, it encompasses records compiled by law enforce- 
ment agencies; then higher up on that page, the "definition of law 
enforcement agency" would appear to include a court, since the 
activity of courts having criminal jurisdiction are listed as among 
"law enforcement." 

Now, what is really the difference between allowing the inspection 
of a police blotter and allowing the inspection of a municipal court 
docket, since there may be a very high rate of correlation between 
the kind of data on the police blotter and the kind of data on the next 
morning's general sessions, or municipal court, or police court docket? 

In the jurisdiction from which I came, for example, every single 
arrest must be accounted for in some fashion to the court. And so, 
even if a warrant is issued and is immediately retracted or withdrawn 
there must nevertheless, be a public record of what happened to that 
warrant. 

So I am wondering whether, first of all, you would agree that this 
bill would literall}^ affect the inspection of court records in the same 
way as police blotters? 

Mr. Neier. First, let me say when I responded previously to the 
question about the availability of a court docket, I said that I thought 
a court docket should be available for inspection only to the degree 
necessary to effectuate the constitutional requirement of a public 
trial. I don't think that would extend to court records generally. 

I think that the fact that a ])articular trial is taking place may have 
to be entered into a court docket in order to effectuate the right to a 
public trial. That information, I think, has to be available for inspec- 
tion. But the general run of court records would cover a great deal 
more than just that information. 

Mr. Garrison. So you agree that the bill presently would pro- 
hibit the free access of non-law-enforcement agencies to court rec- 
ords as well as police blotters? 

Mr. Neier. I think it would. 

Mr. Garrison. And you agree with that general policy? 

Mr. Neier. Yes. 

Mr. Garrison. Wliat do you think really constitutes "dissemina- 
tion," in terms of affirmative governmental action? Is it really dis- 



171 

semination for the Government to allow individuals to inspect rec- 
ords that are maintained in a designated place if the Government 
doesn't make any particular effort to encourage the inspection — if it 
is simplj' public polic}' that some things can be looked at? 

Mr. Neier. I tliink it effectiveh" constitutes dissemination because 
there are agencies which are engaged in very profitable activities 
through the dissemination of information they pick up from public 
records. 

Mr. Garrison. But you use, though, the phrase that those other 
agencies "disseminate." I am still not sure that answers the question. 

Did the Government disseminate? That word seems to connote 
something more affirmative than simply preparing a record which is 
basically for the use of a governmental agency itself. It is principally 
for the benefit of the court to make and keep a court record. 

Mr. Neier. I don't know that it serves the purposes of a court to 
make that record available for general inspection. 

Mr. Garrison. Maybe it doesn't, but even if it doesn't, is it 
dissemination? 

Mr. Neier. The point is it makes it available for dissemination 
so I think it can effectively be disseminating that information. 

Mr. Garrison. So that at least as far as your own interpretation 
of the use of the word "disseminate" throughout this bill is concerned, 
you would construe that word to encompass making available to in- 
spection, without more, other than opening the door of the office and 
letting people come in? 

Mr. Neier. Yes. I think, for example, if the FBI which maintains 
a couple of hundred million records would simply open its doors and 
allow the retail credit corporation to walk in the door and copy down 
all of the records, that would be pretty effective dissemination of 
arrest records. 

Mr. Garrison. Not if they had to wade through the coding system 
that the fingerprint identification system uses. 

Mr. Neier. I think you would find that they were quite Avilling 
to do so. 

Mr. Garrison. Okay. Thank you. 

Mr. Zeifman. Earlier you indicated that you would have no ob- 
jection to the information of an arrest being disclosed, provided the 
identity of the arrestee was not known. 

Do you see any difficulties in that area with respect to the public's 
right to know, the issue of the credibility of the statement that the 
police have in fact said they have arrested 30 people, or 20 people, 
or arrested a particular person? 

Under those circumstances, does the public have a right to be able 
to have that fact substantiated? Is there any other way of substan- 
tiating it other than tlirough disclosing the actual identity? 

Mr. Neier. I think that the public can substantiate the fact that 
the Census Bureau is doing its job without knowing the particular 
persons about whom the Census Bureau happens to collect informa- 
tion. The way the Government substantiates that the Census Bureau 
is doing its job is that the Census Bureau is one Federal agency 
among man}' others which is subject to the review of the Congress 
of the United States. The Congress ma}' periodically engage in investi- 
gations as to whether that executive agency is doing its job properly. 

7S-242 O — 72 12 



172 

I don't need to know what the name is to go with a particular 
collection of private data that the Census Bureau has gathered about 
a particular individual. 

Mr. Zeifman. Thank you very much. 

Mr. Edwards. Our problem, Mr. Neier, is that we are trying to 
legislate in this area and although these hearings are not concerned 
with H.R. 10789, which is the administration's bill introduced by 
Mr. McMillan, Mr. Poff, Mr. Hutchinson and Mr. McClory, Mr. 
SantareUi did appear before our subcommittee, and although it is the 
opinion of the Department of Justice that there should be very great 
restrictions on the dissemination of arrest records, their particular bill 
doesn't spell it out in any specific way. It just states that except as 
provided in subsections (b) and (c) of this section, access to criminal 
justice information system shall be available only to law enforcement 
agencies and so forth. 

But it leaves up to the Attorney General the enforcement, and there 
is no indication in the bill as to what type of regulations the Attorney 
General will promulgate. 

Do you have any opinions on that bill as opposed to ours? 

Mr. Neier. Well, I think that legislation is very deficient in not 
spelling out in great detail how the Government is going to police the 
availability of criminal justice information. I think it has to be viewed 
in the light of the history of the Federal Bureau of Investigation's 
identification division. 

The FBI has operated its identification division for a great many 
years. There was legislation passed in 1930 by Congress authorizing 
the FBI to act as a clearinghouse for this information. But the FBI 
has been extremely lax in policing its own system. It has distributed 
information to a great variety of law enforcement agencies. The only 
restriction that it has placed on the further dissemination of this 
material is an indication on the form through which the information is 
disseminated, that it is to be used, "For official purposes only." 

The FBI had placed only a half dozen very small town law enforce- 
ment agencies on a restricted list over a period of the last 10 years for 
in some way violating the use of the information for anything other 
than ofiicial purposes. In a court case that we have brought dealing 
with this issue, an FBI official testified that the kind of thing which 
would make the FBI bar a law enforcement agency from receiving this 
information was if the information were used in a political campaign, 
say, against the political opponent of the sheriff of the community. 
That was the only example he was able to give of something which 
would violate the stricture against using this information for other 
than oflBcial purposes. As a consequence only these half dozen small 
town police agencies had been placed on the restricted list in the 10- 
year period. 

I think the largest law enforcement agency involved was the sheriff's 
office on Bernalillo County, N. Mex. All the others were smaller. 
Brook Park, Ohio, Cabazon, Calif., and Hobbs, N. Mex. Those were 
communities which had been on this restricted list. The FBI in this 
court case was able to show only one memorandum that it had cir- 
culated about 5 years previously in any way going beyond the state- 
ment, "For official purposes only," on the card itself and that memo 
didn't spell out official purposes. It was just a reminder to recipient 
agencies that this was the policy of the FBI. 



173 

This history was extensively explored by Judge Gesell in the case of 
Menard v. Mitchell and it led to a ruling which is quoted in my testi- 
mony in which Judge Gesell stated that the FBI's system was out of 
control. 

Given the fact that the FBI's system was out of control it is im- 
portant not to allow such vague terminology to appear as is in that 
bill. 

Mr. Edwards. Well, thank you again for your great contribution, 
Mr. Neier. The Chair notes with pleasure the presence of one of 
your Washington representatives, Mrs. Hope Eastman, in the hearing 
room, who does a beautiful job here for j^ou all the time. 

Mr. Neier. We think so, too. Thank you. 

Mr. Edwards. Thank you very much. The committee is adjourned. 

(Whereupon, at 12:10 p.m., the subcommittee was adjourned.) 

Statement of Quinn Tamm, Executive Director, International Association 

OF Chiefs of Police 

Mr. Chairman, my name is Quinn Tamm, and I am the Executive Director of 
the International Association of Chiefs of Pohce (lACP). 

The Association is professionally recognized as the official voice of executive 
law enforcement throughout the United States. 

On behalf of the more than eighty-five hundred police officials who comprise our 
membership, I welcome this opportunitv to offer a statement opposing House 
Bill 13315. 

Traditionally, the law enforcement community has judiciously and jealously 
guarded against improper disclosure of arrest records. 

It is recognized that information contained in such records is highly confidential 
and disclosure beyond the public requirements of a free press could be severely 
damaging to the reputation and personal well-being of concerned citizens. 

The concept of security and privacy of such records is a matter of public trust 
and held in high regard by members of law enforcement. 

However, I believe the proposed Bill goes far beyond the needs of proper police 
administration and social order in restricting the use of arrest records. 

Records of arrests are very valuable for a number of legitimate law enforcement 
purposes: 

First, they may he used in building probable cause. For example, things learned 
from a confidential informant must be verified in order to corroborate his infor- 
mation (Corroboration is required under the Fourth Amendment, Aguilar v. Texas, 
378 U.S. 108). Arrest records are an element of probable cause. The Supreme 
Court has recognized that evidence that is not admissible at a trial may never- 
theless be used to determine probable cause for an arrest. Draper v. United States, 
358 U.S. 307. A similar example is the use of hearsay. 

Very often, pohce officers conducting a surveillance on a location suspected of 
narcotics, gambhng, or other vice activities will observe persons frequenting it 
who have long arrest records. 

Because of technical defects in their arrest or a subsequent search, a prosecutor 
may have noUed the charges. 

In such situations, the pohce could not use, or even have access to, this irifor- 
mation to support their surveillances and establish probable cause to obtain a 
search warrant. 

Second, a person with a record of unprosecuted crimes could be employed by a 
public agency without the agency even knowing of the alleged offenses. 

A prosecutor might noole a case because the available evidence mightnot appear 
to be beyond a reasonable doubt. 

However, a lesser standard of proof is required to refuse to employ or dismiss 
an employee. 

Suppose an applicant for a junior high school physical education instructor has 
been twice arrested for homosexual offenses. 

Suppose further, the prosecutor noUed the charges due to a possible entrapment 
defense, or because the person promised to seek psychiatric help. 

In this case, the school board could not obtain this vital information from the 
poUce department, and the pohce department could not retain it, nor could the 
school board ask the appUcant to disclose unprosecuted arrests in his appUcation, 



174 

Third, the bill would impose civil liability for good faith maintenance or dissemina- 
tion of an included arrest record. 

No exemption is given officers for ordinary human error, computer malfunction, 
or even good-faith ignorance. 

Fourth, the bill will increase the likelihood of physical assaults on police officers and 
deputy sheriffs. 

Often, arrests for resisting arrest or assault are dropped by a prosecutor when 
the accused pleads guilty to the substantive offense. 

Suppose a man is convicted on a plea of guilty to possession of marijuana (a 
misdemeanor in many states), and a charge of forcibly resisting arrest was dropped 
in exchange for his plea. 

The deputy sheriffs who will guard him in jail will not know he has previously 
assaulted an officer. 

Once released, if other officers plan to serve an arrest warrant on him for a 
later developed charge, a check of his record will not reveal his violent tendencies. 

Fifth, the provisions pertaining to court ordered exemptions are too cumbersome to be 
useful. 

The exemption would require a local town marshal, deputy sheriff, or constable 
to travel to a city housing a federal court and present a detailed pleading asking 
for an exemption. 

Judges will be unwilling to sign these except in extraordinary cases, and then 
only when the officers can affirmatively show with "substantial and convincing 
evidence that there is a compelling public interest" to retain an arrest record. 

Sixth, the bill requires destruction, not sealing of arrest records, which could provoke 
suits for false arrest after the records are destroyed. 

Unless a federal court order is obtained, records pertaining to arrests where the 
prosecutor has noUed the charge must be destroyed, not sealed. 

Persons arrested could then sue the police for false arrest. 

Police agencies would not be able to ascertain the names and addresses of 
witnesses, officers may not be able to recall the facts, and evidence might not be 
located which would prove the officers had probable cause to arrest the person suing. 

Prosecutors frequently dismiss charges, particularly with first offenders, as an 
act of mercy or on assurance of the accused that he will not repeat the offense. 

In any event, the police conducted themselves properly if they had probable 
cause. 

But if all arrest reports are destroyed, the police will be hard pressed to prove 
the existence of probable cause at the time of arrest. 

Police officers simply make too many arrests to remember the names and ad- 
dresses of all victims, witnesses and assisting officers months after an arrest, 
unless they can refresh their memory from arrest records. 

Finally, the bill would encourage prosecutors to fully prosecute cases they might 
otherwise drop. 

When dealing with first offenders or persons in need of psychiatric help or other 
social services, the district attorney will be reluctant to nolle the charges since 
it would automatically result in an expungement of the arrest records. 

This would work a hardship on first offenders. 

Mr. Chairman and gentlemen of the Subcommittee, I would also like to call 
to your attention a situation that occurred in Colorado that is a good example 
of what the proposed Bill could do to harm law enforcement. 

A college coed was found badly beaten and unconscious beside a stone quarry 
in Wells County, Colorado. 

She remained in a coma and was unable to supply the sheriff's department 
with any information. 

There being no other leads the department's past arrest records were checked. 

A person was found who had been arrested previously for assaulting a married 
woman at the same location. 

He had not been prosecuted or convicted due to the victim's refusal to press 
charges. 

The sheriff's department approached this jDerson and he ultimately confessed 
to the beating of the coed. 

Under the terms of the Bill, it is possible that the information which led to 
the solving of the case would have been unavailable. 

Of a more routine nature, all modern police agencies use their arrest records 
to analyze high crime areas and plan enforcement programs and patrol procedures. 

It would appear, under the terms of this Bill, that such routine use of arrest 
records would only be allowed under the protection of a court order. 



175 

Also, arrest records are used routinely in such daily activities as administrative 
planning, manpower allocations, budgeting, and training. 

Without benefit of information contained in arrest records, these routine daily 
tasks would cause irreparable harm to the functions of law enforcement. 

With regard to expungement of arrest records, we feel that an acceptable 
alternative to the present Bill would make it illegal to maintain or transmit 
any record of an arrest that has been ordered expunged by a state or federal 
court of record. 

This places the burden of expungement on the person seeking it, and a judge 
of a superior court can make that determination in each case in open court. 

An acceptable provision of the Bill, and one deserving of approval and 
endorsement by the law enforcement profession, is permitting persons to inspect 
their own arrest records. 

This provision is in conformity with the newly enacted law on fair credit 
reporting and disclosure, and is wholeheartedly supported by the I AC P. 

Mr. Chairman, it is my belief that passage of this Bill into law, without 
modification, is not in keeping with the constitutional safeguards of a free society . 

Our concern for the rights of the accused have been made obvious, and no 
one — either in the membership of the International Association of Chiefs of 
Police, or this distinguished Subcommittee — would want to see those rights 
infringed. 

But more and more, our zealous pursuit of individual rights has brought us 
in direct conflict with the rights of society. 

Passage of this Bill can only result in further restrictions of the public peace. 

Mr. Chairman and distinguished members of the Subcommittee, your delib- 
erations carry immense responsibilities. I am sure your decisions will be appro- 
priate. Thank you. 



CORRESPONDENCE AND OTHER MATERIALS 

April 12, 1972. 
Hugh Durham, Esq., 

Chief, Legislative and Legal Section, Office of the Deputy Attorney General, 
Department of Justice, Washington, D.C. 

Dear Mr. Durham: This is to confirm staff discussions relating to requests 
made by the Subcommittee in connection with H.R. 13315, a bill to provide for 
the dissemination and use of criminal arrest records in a manner that insures 
their security and privacy. 

The following requests were made during the Department of Justice testimony 
on H.R. 13315, and the Subcommittee continues to be interested in receiving the 
requested information (page numbers refer to official typed transcript) : 

1. Pages 165 and 194: Studies concerning whether the use of criminal 
arrest records by law enforcement agencies improved the efficiency of those 
agencies. 

2. Page 171: A list of agencies whose authority to participate in the FBI 
fingerprint exchange system was cancelled within the last 10 years. In addi- 
tion, for the same period please furnish us witli the names of agencies which 
have been the subject of complaints and the names of agencies which have 
been subject to corrective action less than cancellation. 

3. Page 171: Copies of agreements with the states and with banks and 
savings and loan institutions under which fingerprints and information 
are exchanged. 

4. Page 221: Department of Justice observations on the report entitled 
"The Closed Door" by Professor Herbert S. Miller. 

5. Page 223: Typical examples of arrest records maintained by the FBI. 

6. Page 223: Typical arrest records maintained bv jurisdictions other than 
the FBI. 

In view of the difficulties presented by the Subcommittee request made on 
Page 222 for a list of persons and agencies from whom requests were received 
during a 30-day period, we withdraw that request. In lieu thereof, we would ap- 
preciate your furnishing the Subcommittee with the following information: 

1. What percentage of requests received from non-law-enforcement agencies 
come from banlis and savings and loan institutions? What is this number on 
an average day? 

2. What ten banlcs and what ten savings and loan institutions are the most 
frequent users of the system? Approximately how many requests do they 
make during the course of a year? 

3. If banks and savings and loan institutions were prohibited from using 
the fingerprint system, how much money would be saved by the FBI during 
an average year? 

Thank you for your assistance in this matter. 
Sincerely, 

Don Edwards, 
Chairman, Subcommittee No. 4- 

Department of Justice, 
Office of the Deputy Attorney General, 

- Washington, DC, May 15, 1972. 
Hon. Don Edwards, 

Chairman, Suhcommiitee No. 4, Committee of the Judiciary, House of Representatives, 
Washington, D.C. 

Dear Mr. Chairman: This is in response to your letter of April 12th in which 
you requested certain information to supplement Mr. Santarelli's testimony of 
March 23rd on H.R. 13315. 

In compliance with a request from your staff, I am forwarding herewith only 
the information which thus far has been received by this office. The remaining 
material will be sent in the near future. 
Sincerely, 

Hugh M. Durham, 
Chief, Legislative and Legal Section. 

(176) 



177 

QUESTION 2, PAGE 1 

Following is a list of the agencies that were subject to cancellation of FBI 
identification services during the past ten years for the misuse of FBI identifica- 
tion records. However, no such listing is maintained of complaints received 
concerning an agency in which appropriate inquiry failed to substantiate the 
misuse of an FBI identification record or that corrective measures had already 
been taken by the agency involved and no further action was warranted. 

Sheriff's Office, Northumberland County, Sunbury, Pa. 

Police Department, Brook Park, Ohio. 

Police Department, Westport, Wash. 

Police Department, Hobbs, N. Mex. 

Sheriff's Office, Bernalillo County, Albuquerque, N. Mex. 

Police Department, Rock Creek, Ohio. 

QUESTION 3, PAGE 1 

The FBI has no written agreements with the states and with banks and savings 
and loan institutions under which fingerprints and information in the manual 
system are exchanged. Such exchange is currently authorized under provisions 
of Section 902 of Public Law 92-184. 

QUESTION 5, PAGE 2 

Attached are samples of two simulated FBI identification records that are 
typical of those maintained and disseminated. The information appearing in an 
FBI identification record is obtained from fingerprint cards and disposition 
forms submitted to the FBI. 

QUESTION 6. PAGE 2 

The FBI is not in possession of a typical arrest record maintained by another 
agency. 

QUESTION 1, PAGE 2 

During fiscal year 1971, approximately 117,000 fingerprint cards (462 per work- 
day) were received from banks and savings and loan institutions which represent 
27 per cent of the applicant-type fingerprint cards received from non-law en- 
forcement and non-Federal agencies. 

QUESTION 2, PAGE 2 

Following is a listing of the ten most active contributors among banks and sav- 
ings and loan institutions, together with the number of fingerprint submissions 
during fiscal year 1971. 

Banks : 

Chase Manhattan Bank, New York, N.Y 6, 675 

First National City Bank, New York, N.Y 5, 347 

Manufacturers Hanover Trust Co., New York, N.Y 4, 940 

Security Pacific National Bank, Los Angeles, Calif 4, 832 

Bankers Trust Co., New York, N.Y 4, 420 

Chemical Bank, New York, N.Y 4, 359 

First National Bank of Boston, Boston, Mass 4, 051 

Morgan Guaranty Trust Co., New York, N.Y 3, 942 

Continental Illinois National Bank and Trust Co., of Chicago, Chica- 
go, 111 3,933 

Bank of America National Trust and Savings Association Department, 

San Francisco, Calif 3, 591 

Savings and loan associations; 

Home Savings and Loan Association, Beverly Hills, Calif — 1, 952 

California Federal Savings and Loan Association, Los Angeles, Calif. _ 301 

First Federal Savings and Loan Association of Miami, Miami, Fla_- 231 

Great Western Savings and Loan Association, Los Angeles, Calif 204 

Atlanta Federal Sav'ings and Loan Association, Atlanta, Ga 180 

First Federal Savings and Loan Association, Minneapolis, Minn 150 

Coast Federal Savings and Loan Association, Los Angeles, Calif 142 

County Federal Savings and Loan Association, Rockville Centre, 

N.Y 138 

Talman Federal Savings and Loan Association, Chicago, 111 131 

Gibraltar Savings and Loan Association Beverly, Hill, Calif 128 



178 



QUESTION 3, PAGE 2 



If banks and savings and loan institutions were prohibited from using the serv- 
ices of the FBI Identification Division, the FBI would have realized a savings of 
approximately $363,870 during fiscal year 1971. 



179 



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181 

Office of the Deputy Attorney General, 

Washington, D.C., May 23, 1972. 
Hon. Don Edwards, 

Chairman, Subcommittee No. 4, Committee on the Judiciary, House of Representatives, 
Washington, D.C. 

Dear Mr. Chairman: This is in further response to your letter to me of 
April I2th. Set forth below are the views of the Department of Justice on "The 
Closed Door" by Professor Herbert S. Miller. 

"The Closed Door" is a report of the results of a study conducted by the 
Institute of Criminal Law and Procedure, Georgetown University Law Center, 
Washington, D.C, concerning the hiring practices, job application and civil 
service regulations of the various states and selected counties and cities and the 
effect an arrest record has upon a person's employment opportunity with such 
governmental bodies. The report concludes that any arrest record is a substantial 
obstacle to employment; that pardons, annulment and expunging statutes are not 
effective in removing this obstacle; and that special provisions relating to the 
confidentiality of former juvenile arrest records are ineffective. The general 
recommendation is that Federal action is needed to prohibit any employer from 
asking about arrest records on job application forms and to prohibit law enforce- 
ment agencies from divulging arrest records which are not followed by conviction 
if the request for such a record is in connection with an application for emploj'- 
ment, license, bonding or any civil right or privilege. 

In general, we believe that the report well sets forth the very real problems 
created bj" the dissemination and use of criminal records. Unfortunately, however, 
little or no effort has been expended to deal with the public need for the use of 
these records and, consequently, we cannot support the bulk of the recommenda- 
tions contained therein. 

There is no question that an arrest record and/or conviction record can adversely 
affect a job applicant. There is little doubt that criminal records are probably 
given too much weight by many personnel people in evaluating job applicants. 
Nor can the value of a decent job be minimized as a rehabilitative tool. These 
facts, however, cannot be viewed in a vacuum. It is also true that conviction of 
certain crimes is some indication that the person committing them may repeat 
his illegal conduct. It is also clear that, in many cases, the existence of an arrest 
or series of arrests, even if not followed by convictions, is some indication that 
an individual may have been involved in crime and, therefore, may be a sub- 
stantial employment risk. 

The integrity of, and public trust in, many public and some private industries 
depends on an honest and ethical labor force. In some cases, the nation's security 
is also at stake. It is, therefore, entirely appropriate that many employers seek 
and receive information concerning an applicant's prior history, particularly as 
it may relate to his involvement in the criminal justice system. 

Because the need to protect the integrity and public confidence in public and 
quasi-public industries sometimes conflicts with the interests of persons with 
criminal records, it is inappropriate to suggest the abolition of certain criminal 
record maintenance or dissemination practices. It is more appropriate, we believe, 
to consider a particular dissemination practice as it relates to particular agencies 
and industries. This is the basic position we have advocated with respect to crim- 
inal record information. This approach, together with coordinated efforts outside 
the field of record maintenance and dissemination, e.g., governmental bonding 
programs for ex-convicts, can help solve many of the problems mentioned in the 
report without impairing the ability of employers to maintain the public trust in 
their agencies and industries. 

In addition to the above view, we offer the following comments on particular 
suggestions in the report: 

(a) We agree with the suggestion that all job application forms should clearly 
indicate that a criminal record does not automatically disqualify an applicant for 
a job; 

(b) While we generally agree with the purposes of the Model Juvenile Records 
statute, we believe its prohibitions are unduly sweeping. The use of juvenile 
records should be stricth' limited and at some point in time prohibited. We 
suggest, however, that records of serious juvenile offenses should not be destroj^ed 
after a two-year period as suggested. Also the dissemination of juvenile records 
containing such offenses, or a series of lesser offenses, should be permitted if the 
inquiry pertains to potential employment in a sensitive position affecting the 
national security or a vital public service; 



182 

(c) We agree that state licensing practices are sometimes abusive and that a 
careful review of unnecessary discrimination against persons with criminal records 
should be made and appropriate steps taken to correct the situation; 

(d) We believe the suggestions involving expungement and annullment are too 
sweeping and that criminal record information should be maintained except in a 
few specific cases; 

(e) We generally agree that public institutions should set an example for private 
industry and hire ex-offenders whenever this can be done without significantly 
threatening the security of the agency; and, 

(/) We agree that civil service examinations and job announcements should 

be made readily available to persons serving time in prisons, and that prison 

training programs should meet union apprenticeship standards whenever possible. 

As you will note, we have not discussed the practical problems which would be 

created by legislation prohibiting law enforcement agencies from divulging arrest 

records not followed by conviction if the record request is in connection with an 

application for employment, etc. For a discussion of our views on this subject, 

at least insofar as it relates to the Identification Division of the FBI, I refer your 

attention to Mr. Santarelli's testimony of March 23rd before your Subcommittee. 

I hope this information has been helpful to you. 

Sincerely, 

Hugh M. Durham, 
Chief, Legislative and Legal Section. 



Associated Credit Bureaus of Illinois, Inc., 

East St. Louis, III, April 4, 1972. 
Re Credit investigation. 

Congressman Robert McClory, 
Rayburn House Offi,ce Building, 
Washington, D.C. 

Dear Congressman: The Associated Credit Bureau of Illinois, Inc., which 
represents the majority of the Credit Reporting Bureaus in the State, have long 
advocated and requested that its members do not make a part of an individuals 
credit record, information regarding arrests until such time as the person involved 
has been tried in court and has been found guilt v, and then the information 
becomes a part of public record. 

I know of no Credit Reporting Bureau in Illinois, that is a member of our 
trade Association, that include or disseminate information that includes photo- 
graphs and fingerprints. 

Long before the Fair Credit Reporting Act went into effect in April of 1971, 
our Association had advocated credit counseling and the practice of inviting 
individuals having credit problems to visit their local credit bureau and go over 
their own personal file in order that any erroneous information might be corrected 
or any items in question might be cleared up to the satisfaction of all concerned. 

Thus, we are overwhelmingly in agreement with the proposed legislation 
regulating the indiscriminate dissemination of arrest records, photographs and 
fingerprints which you mention in your report of March 22, 1972. 

You might be interested in knowing that our Association has put on a vigorous 
campaign to educate all officers, staff members, and personnel of credit reporting 
bureaus in how to comply with the Fair Credit Reporting Act and the regulations 
that the FTC attached to it. In Illinois we have had 98% of all the managers or 
owners attend Association seminars covering this Act. 

You might also be interested in knowing that as an Industry we are extremely 
interested in disseminating credit education to young folks. Last year through 
the cooperation of Mrs. Metcalf, from the Illinois Department of Education, 
and others, we participated in 27 Teacher Seminars. In addition to this I would 
estimate that some member of our Association has presented a Credit Education 
Program to at least 75% of the high schools in Illinois within the last year. 
Sincerely, 

Wesley P. Turco, 

President. 



183 



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185 



THE 

ACT 



A Presentation for 

The Customers of 

RETAIL CREDIT COr.lPANY 



ATLANTA, GEORGIA 
December, 1970 



186 



CONTENTS Anatomy of a Law 
General Effects 
Compliance Requirements 
Liabilities for Non-compliance 
Administrative Enforcement 
State Laws 
Projection 
Attachments 



187 



our established customers to sign an entire new 
Agreement for Service. AIL that will be needed 
from established accounts is a brief letter 
including certification that reports will be 
ordered and used in accordance with provisions 
of the Act. 

Th e only other restriction on our service to 
you is that our reports may not contain advers e 
info rmation more than seven years oldjexcept;^ 

(1) Bankruptcies may be reported for 
fourteen years. 

(2) Arrests, indictments and convictions 
ma y be reported for seven years after 
disposition, release o r parole., 

(3) There are no limitations on reporting 
adverse information where a face amount 
of $50,000 of life insurance, or a credit 
transaction of $50,000 or more, or a job 
paying $20,000 or more per year in salary 
is involved. 

These are the general effects of the Act. 
Specific requirements are discussed in detail 
on the following pages. 



78-242 O - 72 - IS 



188 

(The following letter was sent to Congressman Don Edwards and 
Congressman Charles E. Wiggins:) 

State of California, 
Office of the Attorney General, 

Department of Justice, 
Sacramento, Calif., March I4, 1972. 
Subject: Criminal Justice Information Systems Security and Privacy Act of 1971 

Dear Congressman: This is to inform you of our opposition to the enactment 
of the Criminal Justice Information Systems Security and Privacy Act of 1971. 
This act authorizes the United States Attorney General to establish standards 
and regulations for maintaining the security and privacy of information contained 
in criminal justice information systems, and for the updating, purging and review 
of criminal history records. It applies to any criminal record system which is 
funded in whole or in part by the Law Enforcement Assistance Administration. 

The necessity of insuring the accuracy, privacy, and security of criminal records 
is conceded by all persons concerned with criminal justice information systems. 
The Criminal Justice Information S.ystems Security and Privacy Act of 1971, 
however, contains a serious weakness which is the basis for our opposition at this 
time. By placing within its scope any criminal justice information system which 
is funded in whole or in part by the Law Enforcement Systems Administration, 
the act grants to the United States Attorney General complete control over 
virtually every state criminal information system in the nation. In effect, it takes 
from the states the authority to control state criminal justice information systems 
and gives it to the Federal Government. The specter of Federal control over state 
and local criminal justice information systems has caused serious concern on the 
part of law enforcement officials throughout California, and is the basis of our 
opposition to the enactment of the act. 

Responsible officials in California have long recognized the need to carefully 
control criminal justice information systems. Existing California law, for example, 
prohibits dissemination of criminal history records except to law enforcement 
agencies and, in restricted cases, to state agencies if justification is shown (Cali- 
fornia Penal Code §11105). Existing California law also allows an individual who 
believes that a criminal history record is being maintained in his name, to review 
that record for accuracy and completeness and to seek to have it corrected if an 
error is found (chapter 1439, Stats. 1971; PC §§11120-11127). 

The California Department of Justice, and other interested agencies and persons, 
continually evaluate existing criminal justice information systems in order to 
determine what additional measures, if any, are needed to insure the security and 
privacy of records kept thereunder. To take from the State of California and its 
subdivisions the authority to properly regulate the security and privacj' of its 
criminal justice information systems, and to consolidate this power in the United 
States Government, will destroy both the carefully worked out protections existing 
in California, and the ability of this state to formulate additional protections 
specifically adapted to its needs. 

If you should desire any additional information or comment in regard to this 
matter, please do not hesitate to contact our office. 
Very truly yours, 

EvELLB J. Younger, 

Attornev General. 



(The following letter was sent to Congressman Peter H. B. Freling- 
huysen and Congressman John E. Hunt:) 

State of New Jersey, 

April 18, 1971. 

Dear Congressman: I am writing to call your particular attention to legislation 
now pending in Congress concerning the security and privacy of computerized 
criminal history data (S-2546, H. R. 10789 and H. R. 10892). I am most concerned 
about the provisions of Section 2 (Definitions) and Section 4 (Security Updating 
and Purging) in the above proposed statutes. 

It seems to me these provisions could well be interpreted by the Executive to 
require the exclusive dedication of criminal justice information systems which are 
supported by LEAA to law enforcement purposes and to the management control 
and use of a law enforcement agency. Under such an interpretation, all federally 



189 

funded criminal justice computer systems would have to be managed and controlled 
separately from all other state computer systems. 

While I certainly recognize the need for keeping secure and confidential the 
kind of information to be stored in such a system, I do not believe it is either 
necessary or desirable that the total system be completely dedicated for use and 
control of law enforcement agencies. 

I believe that the criminal justice community can continue to provide ap- 
propriate security and confidentiality of criminal history data by controlling the 
input and use of that data and by specifying the securitj^ and confidentiality 
requirements to be met with regard to that data. 1 do not believe it necessary for a 
criminal justice agency to have an exclusively dedicated computer nor is it neces- 
sary that a law enforcement agency have management control over that computer. 

We in New Jersey have recentlj^ begun developing a multimillion dollar criminal 
justice computer system to serve the various needs of the Department of Law and 
PubHc Safety. While the New Jersey Statp Police will have complete control over 
the introduction and use of criminal history data on that system, we do not 
believe it is economically desirable that the State Police have its own computer 
or even management control over the computer. We feel it is extremely important 
that the State Police continue to provide security and confidentiality for the 
system's criminal history data by controlling its input and use. But under our 
system, other agencies of this Department, such as the Division of Motor Vehicles, 
our civil and criminal law offices, and our Consumer Affairs Agency can share the 
computer's use and at the same time, security of criminal information can be 
maintained. This is clearly the most economical way to approach the problem. 

I do not see any reason for providing a "dedicated criminal justice system" as 
defined in the legislation which is now before j^ou for consideration. I would 
appreciate it sincerely if you would review the proposed legislation in a manner 
consistent with the position taken in New Jersey and in many other jurisdictions. 

Thank you for your cooperation. 
Very truly yours, 

George F. Kugler, Jr., 

Attorney General. 

Report of the Committee To Investigate the Effect of Police Arrest 
Records on Employment Opportunities in the District of Columbia 

introduction 

By his letter of December 1, 1966, the President of the Board of Commissioners 
of the District of Columbia appointed the Committee to investigate the effect of 
police arrest records on employment opportunities. 

The Commissioner, in his statement, dated November 18, 1966, wl\ich ac- 
companied the appointing letter, characterized the problem facing the Com- 
mittee as the ". . . emplo.yment of persons with police records. . . .," and placed 
emphasis upon the necessity for a more tolerant attitude on the part of employers 
in order to break the unemployment-crime cj^cle. The Commissioner expressed 
his desire for a constructive report containing practical recommendations for the 
solution, or at least alleviation, of the problem. The Commissioner recognized 
that it would be infeasible and perhaps unwise for the Police Department to 
individually purge hundreds of thousands of police records in order to eliminate 
from the files all arrests not leading to convictions. At the same time, he recog- 
nized that raw arrest records in the hands of employers not educated as to their 
proper evaluation, could work injustice upon both prospective employers and 
employees, preventing the employment of first-rate employment risks. The 
Commissioner instructed the Committee to hear all parties in interest, either 
orally or through statements. 

The membership of the Committee represented various segments of Govern- 
mental and private interests respecting the employment of offenders. It was com- 
posed of Charles T. Duncan, Corporation Counsel of the District of Columbia; 
James J. McAuliffe, Commanding Officer of the Communications and Records 
Bureau of the Metropolitan Police Department; Kenneth L. Hard.y, Director of 
the Department of Corrections of the District of Columbia; Mrs. Jean H. Sisco, 
Chairman of the Employment and Security Committee of the Washington 
Metropolitan Board of Trade; and Philip J. Daugherty, Delegate of the Central 
Labor Council. 

The Committee held nine (9) regular sessions at which were heard interested 
individuals and groups, both public and private, concerning the effect of the 



190 

"Police Clearance System." The Committee held more than five (5) executive 
sessions planning procedures and areas of investigation, discussing and evaluating 
the information presented to it, and formulating its report and recommendations. 

In addition to oral presentations, the Committee received briefs, 
copies of reports and regulations, and voluminous correspondence from affected 
individuals and interested public and private officials. 

Among the interests heard were the following: 

Efforts from Ex-Convicts, Neighborhood Legal Services Project, National 
Capital Area Civil Liberties Union, Metropolitan Washington Board of Trade, 
Woodward & Lothrop Department Stores, Washington Gas Light Company, 
District of Columbia Personnel Office, Work Training and Opportunities Center 
of the D.C. Department of Public Welfare, American Insurance Association, 
Bonabond, Inc., Metropolitan Washington Federation of Businessmen, Com- 
mission on Human Resources, D.C. Department of Licenses and Inspections, 
D.C. Department of Occupations and Professions, District of Columbia Parole 
Board, United States Employment Service for the District of Columbia, D.C. 
Department of Motor Vehicles, a Judge of the D.C. Court of General Sessions, 
District of Columbia Bar Association, Police Departments of a number of cities 
and counties, and the Metropolitan Police Department of the District of Columbia . 

The Committee reluctantly recognized that staff and budget limitations would 
not permit statistical investigations to define the precise relationship among the 
numerous factors pertaining to the arrest records and employment problem. Thus, 
the weight attributable to such factors as the number and type of offenses indicated 
upon arrest records, age, sex, race, education, training and work experience of 
individuals to whom the records relate, and the nature and scope of various em- 
ploying agencies making use of arrest records, was not established by the Commit- 
tee on a quantitative basis. The Committee took into account, however, data 
reported in the Report of the President's Commission on Crime in the District of 
Columbia and statistics submitted to it by various interested agencies. The files 
of the Committee are preserved in the Office of the Corporation Counsel of the 
District of Columbia. 

The Committee submits herewith its report and recommendations, representing 
its effort to fulfill the Commissioner's mandate. 

REPORT 

In the District of Columbia, arrest records are maintained by the Metropolitan 
Police Department pursuant to D.C. Code, Sections 4-134(4) and 4-l34a. The 
first section provides for the keeping of chronological Arrest Book entries in Police 
Precincts, to include full details of each arrest made and the disposition of each 
such case. The second calls for the keeping of compilations of the arrest and con- 
viction records of individuals. These have come to be known as "Central Criminal 
Records." They are maintained in card files at Metropolitan Police Headquarters. 
Information from Precinct Arrest Books is entered on cards as it is received from 
the various Precincts and Squads of the Department. Subsequent entries are made 
to reflect the progress of cases through judicial and correctional channels. The 
records do not, of course, reflect arrests that occurred in jurisdictions other than 
the District of Columbia; nor do they indicate offenses in which prosecution was 
initiated through means other than the arrest of the defendant. 

Prior to 1954, police records pertaining to arrests were generally not open to 
public inspection. In an opinion dated January 26, 1954, the Corporation Counsel 
ruled that police records are not public records to which the interested public may 
have an inherent right to inspection and that publiction of such records would 
constitute an invasion of the right of privacy of persons who had not been con- 
victed or who had been acquitted at trial. 

Congress, however, by the Act of August 20, 1954, amended Section 4-135 of 
the D.C. Code to provide that the Precinct Arrest Books shall be open to public 
inspection. Therefore, in an opinion dated June 6, 1956 the Corporation Counsel 
reconsidered his former opinion and concluded that, since the statute expressly 
made public complete information concerning all arrests, including final disposi- 
tions, there no longer existed a right of privacy concerning any arrest made sub- 
sequent to August 20, 1954. Thus, it was the opinion of the Corporation Council 
that : 

"... although Congress had not expressly opened to public inspection 
criminal records which are contained in the central criminal records files, 
such records, or parts thereof, showing all convictions and all arrests sub- 
sequent to August 20, 1954 . . . which are of the same general character 
as those made public by the Act of August 20, 1954, may be within the dis- 
cretion of the Chief of Police, released to members of the interested public." 



191 

In a later opinion dated March 29, 1963 the Corporation Counsel sanctioned the 
release of criminal records "to interested persons, such as Detective Agencies, 
Credit Associations and the like." 

The Precinct Arrest Books, by law, continue to be available for inspection by 
the general public when not actually in use. Records of case dispositions main- 
tained by the clerks of the various criminal and appellate courts are public records 
also. It must be observed, however, that these records are maintained in chrono- 
logical sequence, so that the searcher must know the approximate date of the 
diposition sought. 

In general, it has been the policy of the Police Department to restrict the release 
of composite records from central criminal files to the individuals to whom the 
records relate and to government agencies. Upon request these records are re- 
produced mechanically and furnished without cost. In case no record can be found 
for the name indicated, a statement to that effect is supplied. Between 350 and 
400 persons per day are serviced in this manner. The practice of providing 
individuals with their composite arrest records without cost is sufficiently time 
consuming to require the full-time services of at least four employees. Police 
Department employees report that some citizens obtain copies of their records 
time after time as they change fiom job to job. 

It has been reported to the Committee from various sources that institutional 
and other nongovernmental employers in the District of Columbia area routinely 
require job applicants to obtain and provide copies of their arrest records or 
"police clearances" (i.e., certifications that applicants have no arrest records). 
Representatives of Efforts from Ex Convicts, an incorporated organization provid- 
ing a self-help program foi rehabilitated persons interested in community affairs 
and their own economic and social improvement, have stated that police clear- 
ances are requested in filling all job categories with the exception of construction 
workers, dishwashers and laundry workers. Help-wanted ads in the newspapers 
for porters, painters, janitors and other manual workers demonstrate that the 
production of arrest recoids or police clearances is prerequisite to employment 
consideration in a large proportion of openings. Many cases were cited in which 
the existence of arrest and conviction records rendered it impossible for certain 
individuals to find employment in fields commensurate with their capabilities 
and training. 

The National Capital Area Civil Liberties Union has, on the basis of studies 
conducted in the Department of Labor, the D.C. Urban League and the United 
Planning Organization, calculated that between 60% and 90% of the male working 
population in some predominantly Negro areas of the District of Columbia is 
systematically excluded from between 25% and 50% of the jobs available to them 
in relation to their skills. 

The Report of the President's Commission on Crime in the District of Colurnbia 
related the unemployment rate rather closely to the crime rate. The Crime 
Commission estimated at page 800 of its Report that more than 36,000 District 
residents are unemployed or underemployed. Negro males, and particularly 
young (16-24 years) Negro males were found to have comparatively high rates of 
unemployment. At page 801 of its Report the Crime Commission reported 
estimates that 174,000 persons, or 23% of Washington's population, live "in 
abject poverty, the lowest level of deprivation," and that 262,000 people — Ys of 
the city's population — exist at little more than a subsistence level with "incomes 
inadequate to provide them with the basic necessities of life." At pages 127-130 
of its Report the Crime Commission found that of adult criminal offenders, 60% 
had no history of regular employment at the time of arrest and that 50% of the 
Negro offenders and 41% of the White offenders were unemployed at the time 
of their arrest. 

The National Capital Area Civil Liberties Union and the Neighborhood Legal 
Services Project, in their representations to the Committee, laid particular stress 
upon the absence of a notation of disposition for many of the charges shown on 
arrest recoids. They point out that dispositional notations are required by statute. 
The Committee's Metropolitan Police Department representative advised, 
however, that only 8% of the arrest records in Central Criminal Records donot 
reflect dispositions. He further advised that dispositions are continuously entered 
upon the records as they are received. The National Capital Area Civil Liberties 
Union and The Neighborhood Legal Services Project further pointed out that, 
while the presumption of innocence should be indulged in such cases, just the 
opposite is the probable and usual result in cases where there is no disposition 
entry or where the entry is Nolle Prosequi. They argued that such mere arrest 
records do not reflect adjudicated violations of law and yet are commonly relied 



192 

upon by employers to disqualify employment applicants. It was asserted that 
arrest records are almost a fact of life for young Negro residents of the city's 
slums. As pointed out in the Report of the President's Commission on Crime in 
District of Columbia at page 454, the mere fact of arrest may prove little about 
criminal activities of the applicant in a great many cases; nevertheless, it often 
serves unfairly to effectively disqualify job seekers. 

Various types of amnesty provisions were recommended to the Committee by 
groups including the Commission on Human Resources (a constituent agency of 
the Washington Center for Metropolitan Studies), the Neighborhood Legal 
Services Project, the National Capital Civil Liberties Union and Efforts from Ex 
Convicts. Some of the proposals would provide for expungement of police records 
(whether of conviction or merely arrest) after the passage of a stated period of 
time, while others would remove merely those entries reflecting arrests not re- 
sulting in convictions or forfeitures. Another recommendation frequently made 
to the Committee was the removal of "minor" offenses from the arrest records 
furnished to individuals for employment purposes. Such a recommendation was 
made by a Committee of the District of Columbia Bar Association which studied 
the arrest records problem, and by other groups as well. 

Jn its researches, the Committee contacted the Police Departments of seven 
cities and two neighboring counties with respect to their practices concerning 
release of arrest records for employment purposes. Although it was stated to be 
the local policy or legal requirement in New York City, Los Angeles, San Fran- 
cisco, Chicago and Boston that arrest records not be released for private purposes, 
it appears that influential employers may often obtain such information notwith- 
standing the legal or policy prohibitions. In St. Louis and Baltimore police records 
are regularly released for employment purposes, as is also the case in Arlington 
County. Montgomery County limits release to cases where the initial arrest was 
followed by conviction or forfeiture. 

Since 1954 it has been the policy of the District of Columbia Government to 
give equal employment consideration to felons except if employment would be 
contrary to the public interest or the good of the service. Such policy if^ subordinate 
to the requirement that selection of applicants for jobs be based upon merit. 
No special program has been conducted to encourage Departments and Agencies 
of the District of Columbia to hire felons or misdemeanants. On the other hand, 
personnel practices do not inhibit the hiring of these persons, and a goodly number 
of them have in fact been hired. The District of Columbia Personnel Manual 
places responsibility upon the hiring Department to conduct a thorough investi- 
gation of the facts where a possible felony is indicated on the application of any 
person considered for appointment; such investigation to include checks on 
fingerprints, personal references and police records. As a matter of practice, it 
appears that District of Columbia Departments and Agencies routinely consider 
police records as part of the selection process in virtually all cases. 

The Chief of the Employment and Employee Relations Section of the District 
of Columbia Personnel Ofhce recommended to the Committee that arrest record 
information no longer be made available to employers, inasmuch as requiring job 
applicants to provide such information does more harm than good because many 
interviewers, receptionists and employers automatically rule out considering any 
person where a risk is involved. Affirming that a pattern of certain types of arrests 
withovit convictions might indicate a character deformation or bad habits, it 
was argued that these would be revealed in other ways — through the individual's 
work performance on previous jobs and during his probationary period on the 
current job. 

The Director of Personnel Investigations, United States Civil Service Com- 
mission, advised the Committee that, consistent with the President's message 
to Congress of March 9, 1966 concerning a National Strategy Against Crime, 
the Civil Service Commission has taken steps to open avenues of employment 
to reformed and "good risk" offenders. To that end, the merit system is admin- 
istered in a manner consistent with the objective that persons with records of 
criminal convictions who are attempting to obtain employment in the Federal 
service receive, on an individual basis, mature and sophisticated consideration 
of the social and humane need for their rehabilitation as well as the require- 
ments of the positions for which they apply. Further, Standard Form 57, 
Application for Federal Employment, has been revised to elicit information 
concerning convictions and forfeitures rather than mere arrests. It was stressed 
that the point in eliminating the question concerning arrests from the Form was 
to insulate the initial interview from unevaluated arrest records and consequent 
summary rejections. 



193 

It was pointed out, however, that Executive Order 9835 requires that a 
"fitness" investigation be made prior to final appointment, such investigations 
to inckide consideration of pohce department files. Thus, the significance of 
arrests not followed by convictions was defended by the Civil Service Commission. 
It was stated that it is only after the applicant has been tentatively hired that 
arrest information becomes pertinent. The need for public confidence in govern- 
ment employees was invoked as justifying these considerations. It was argued that 
some arrests have a bearing on an individual's fitness, even though not resulting 
in conviction or forfeiture, because, for example, some arrested persons are not 
brought to trial because of the disappearance of witnesses or because of unwilling- 
ness on the part of those concerned to prosecute. Homosexual arrests were 
thought to be particularly significant, although they typically result merely in 
forfeitures of collateral. It was conceded that many government agencies have 
their own personnel investigation staffs so that not all investigations are 
conducted at the Civil Service Commission level. Further, it was conceded that 
if a particular supervisor wants to see an arrest record in connection with his 
initial decision whether or not to hire an applicant, he is usually able to get it 
with little difficulty. 

A representative of the Work and Training Ojaportunities Center of the District 
of Columbia Department of Public Welfare estimated that more than half of the 
persons who come to the Center have police records. He was disturbed that records 
showing forfeitures of collateral often result in the summary rejection of appli- 
cants by employers. Such attitudes on the part of employers have engendered 
feelings of defeatism in unemployed persons with arrest records. Thus, when an 
emploj-er asks for a police clearance, the applicant who has been arrested may not 
return, thinking he will automatically be rejected. He may not even apply for a 
job for which he is qualified if he thinks he will be asked for a police clearance. The 
Work and Training Opportunities Center seeks to reform the attitudes and im- 
prove the work habits of the unemployed persons it services and to provide them 
with the necessary experience in the areas in which they wish to work. It also 
intercedes in behalf of its trainees with potential employers. The Center experi- 
ences arrest record difficulties with District of Columbia agencies as well as with 
private employers, reporting that it is often at the immediate supervisory level 
that production of clearances is requested. 

The Committee has received reports that arrest records adversely affect persons 
in the middle Civil Service grades as well as applicants for lower-rated positions. 
The typical case involves arrest and forfeiture of collateral for public drunkenness 
or for drunken disorderliness. It was asserted to the Committee that such arrests, 
although constituting isolated and insignificant episodes, have a continuing and 
substantial adverse effect upon employment and advancement opportunities. 

Representatives of commercial bonding interests advised the Committee that 
bonding companies have no interest in arrest records as such. Sample applications 
for individual and blanket bonds contained no questions relating to arrests. It is 
a stipulation of standard bonding contracts, however, that coverage of the bond 
shall not apply to any employee from the time that the insured shall have knowl- 
edge or information that such employee has committed any fraudulent or dishonest 
act at any time. The effect of such stipulations upon employees has been to cause 
them to demand production of arrest records by prospective employees. Although 
an arrest for drunkenness or assault with a deadly weapon reflects no dishonesty, 
it would appear that some employers reject potential employees who have such 
records because of real or imagined bonding considerations. High-risk individual 
commercial bonds, at higher premiums, are bej-ond the capacity of most applicants 
for employment and are generally considered to be impracticable from the point 
of view of the employer except in unusual cases. It was stated to the committee 
that the private bonding sector is not equipped to cover such risks at lower pre- 
miums inasmuch as its primary interest cannot be rehabilitation. 

The Department of Labor's Experimental Bonding Demonstration Project and 
the Bonabond Project, funded by the United Planning Organization, have under- 
taken the sponsorship and bonding of persons who might otherwise not be able 
to find employment because of arrest or conviction records. The programs perform 
a highly useful function not only in providing bonds but in interceding to sponsor 
qualified individuals for employment. It appears that unless the applicant with 
a police record can enlist the sponsorship of .some ostensibly reliable institution, 
his chances of finding suitable employment are small. 

The Superintendent of the License and Permit Division, Department of Licenses 
and Inspections, District of Columbia Government, reported that there are 35 
categories of businesses which require police recommendations concerning ap- 
plicants for licenses with regard to moral character or suitability otherwise. 



194 

Among these businesses are such enterprises as nightclubs, bowling alleys, parking 
lots, pawnshops, poolrooms, sellers of deadly weapons, and home-improvement 
contractors. It was stated that last year the police department unfavorably rec- 
ommended 300 applicants for various types of licenses but that, following 
interviews, conferences, and independent investigations, the Department of 
Licenses and Inspections declined to follow such recommendations in 200 cases. 
Of this number, the Department was disappointed in the performance of only 
one licensee. Police recommendations are primarily based upon complaints and 
arrests. It was stated that the Department of Licenses and Inspections encourages 
borderline applicants to establish community contacts, such as church and civic 
organization memberships, in order to achieve a good reputation and favorable 
references. Arrest and conviction records are among many factors considered by 
the Licenses and Permit Division in determining whether a license should be 
issued. The Division is to be commended for its practice of working with license 
applicants so as to help them meet the requirements of the regulations and to 
become responsible and productive members of the economic community. 

The Department of Occupations and Professions of the District of Columbia 
Government likewise makes use of arrest and conviction records as part of its 
considerations concerning the licensing of individuals for such disparate occupa- 
tions as plumber, electrician, veterinarian, medical doctor, mortician, nurse, 
barber, etc. Separate Examining Boards makes the licensing determination with 
respect to each occupational category. Applicants for licenses must establish good 
moral character within the ambit of the particular function to which the license 
relates. Thus, the Department's Investigative Unit ordinarily obtains arrest and 
conviction records from the Police Department and likewise obtains records from 
other jurisdictions. These records are evaluated by the Investigative Unit and 
reported to the Examining Boards. Thus, unevaluated raw data is not received 
by Examining Boards. Consistent with the change by the Civil Service Com- 
mission of Standard Form 57, the Department of Occupations and Professions 
is changing its application for renewal of license forms to inquire concerning 
convictions, rather than mere arrests, since the dates of issuance of previous 
licenses. 

The Department of Motor Vehicles of the District of Columbia Government 
makes use of arrest records and of juvenile apprehension records in connection 
with the granting or denial of so called "character" licenses, such as driver in- 
structors' licenses, and of drivers' licenses to juveniles. The arrangement with 
respect to obtaining records of juveniles is an informal one between the Depart- 
ment of Motor Vehicles and the Police Department. Regulations do not require 
the Department of Motor Vehicles to take such matters into consideration. The 
Department of Motor Vehicles also makes use of arrest records in connection 
with the revocation of drivers' licenses on the basis of narcotics or alcohol addiction 
or mental incompetency. 

The District of Columbia Parole Board makes use of arrest records in connection 
with determining eligibility for parole. The Chairman of the Parole Board advised 
the Committee that the listing of unadjudicated offenses on police records some- 
times works unfairly against parole consideration. 

The Director of the United States Employment Service for the District of 
Columbia recommended to the Committee that, in view of the relative case with 
which an individual may incur an arrest record, adult offense records should list 
only those instances where an arrest has resulted in a conviction. He emphasized 
that production of a police clearance or arrest record is required as a pre-con- 
dition to employment by many employers and that these records of arrests, 
whether conviction resulted or not, often state the resolution of charges in terms 
that are unclear to the employer. He reviewed the activities of the six local U.S. 
Employment Services offices on behalf of job applicants with records of arrest or 
conviction, concluding that the increasing practice of employers of specifying 
"clean police record" for the job applicants renders it impossible for the Service 
to successfully place many qualified applicants. He stated that the Commercial 
Office and the Trades and Industrial Office of the U.S. Employment Service are 
able to place less than 15% of those applicants who have records of arrest or 
conviction. The Service Office (hotel, restaurant and household occupations) and 
the Labor Office (unskilled occupations — male) are able to place a higher per- 
centage of applicants who have records in temporary jobs. The Employment 
Service seeks, and is frequently able, to direct persons who have arrest and con- 
viction records through a series of short-time, temporary jobs until a satisfactory 
employment record is built up. Then the offender is placed permanently with an 
employer who has grown to know the individual through a series of short-time 



195 

jobs. Such efforts are, however, in view of the immensity of the problems, in- 
adequate. The offender must compete with other categories of "disadvantaged" 
appHcants for the attention of the counselors and special placement personnel. 
It appears that there is a substantial need for establishing within the employment 
service a unit or units with responsibility for meeting the occupational and related 
problems of the offender. 

The Committee was advised by the Deputy Chief of Police in charge of the 
Youth Aid Division that a "clearance" system, closely parelleling the system in 
effect with respect to adult offenders, is operated for the purpose of aiding juve- 
niles in finding employment. In view of the provisions of D.C. Code Sections 
11 — 1586 and 16-2307, concerning the withholding of juvenile offense records 
from indiscriminate inspection and specifying that adjudications in juvenile 
cases are not in the nature of criminal convictions, the furnishing of statements 
concerning juvenile records, no matter how well intentioned, is clearly 
inappropriate. 

Institutional employers have represented to the Committee that their employ- 
ees, who may be equipped with uniforms or other means of identification, are 
represented to the public as trusted agents of the employer. They are readily 
admitted to the residences and places of business of the employers' customers. 
Such employers, therefore, have a moral responsibility to review the characters 
of applicants for such employment. Indeed, under the law, an employer may be 
held civilly liable for criminal or tortuous acts by employees whom it introduces 
into the home under circumstances giving rise to reliance on the employer's 
care in selecting employees and where ordinary care in not exercised by the 
employer in investigating into the employees' qualifications or character. Such 
institutional employers maintain that they must have arrest and conviction data 
available to them at the time of making the employment decision in order to 
discharge their duty of care. Although a requirement for work and character 
references might discharge this duty, there is considerable merit to their argu- 
ments for continuing the convenient availability of police record data, so long 
as it is not misleading. Some institutional employers maintain that they are able 
to extract relevant information from the records and to thoroughly evaluate all 
available information obtained by way of interview, application, prior employ- 
ment records and police records. They maintain that the type of offense, whether 
it was an isolated incident or part of a course of conduct, the disposition of the 
charge and the surrounding circumstances are all taken into account in evaluating 
police records, both of arrests and of convictions or forfeitures. They maintain 
that they staff experts who are able to interpret and evaluate the arcane notations 
on police records. The MetropoUtan Washington Board of Trade represented to 
the Committee that employers need arrest record information in evaluating 
applicants for particular types of employment such as those involving the handling 
of cash. The Board of Trade spokesman was of the opinion that many of its 
members hire individuals in spite of their police records. 

The President of the Metropolitan Washington Federation of Businessmen, a 
small businessman's organization, stated that although he had been a business- 
man in the District of Columbia for many years it was not until he was invited 
to appear before the Committee that he became aware of the availability of police 
records. He stated that small businessmen make little use of police records di- 
rectly, relying instead on past employment records and, frequently, on credit 
agency reports. He recognized, however, that such records may be taken iiito 
account by licensing authorities for many types of employment and that the police 
records are presumably available to credit agencies. 

The Chief of Police advised the Committee that for the week of April 3 through 
April 9, 1967, requests for police records were received and furnished as follows: 

Federal Government !> 482 

District government 588 

Other agencies (GSA, Litton Industries, credit agencies, etc.) 554 

Individuals 1,048 

He also indicated that 500 checks on jury panelists are made each month and 
that about 30 checks for visa purposes are made each month. Thirty-two percent 
of the individuals requesting "clearance" on a randomly selected day were found 
to have police records. The Chief was of the opinion that discontinuance of the 
"clearance" system might lead to increases in certain types of offenses (such as 
embezzlement) while reducing others (such as petty larceny and vagrancy), 
assuming, of course, that persons with arrest records would be employed in sub- 
stantially greater numbers by virtue of discontinuance of the system. The Chief 



196 

felt, however, that reveahng the record is healthier than suppressing it inasmuch 
as employers should know about prior offenses committed by job applicants and 
should take them into consideration. He felt that employers should be educated to 
intelligently and sympathetically evaluate the records to the end that minor 
offenses would not constitute an insuperable employment obstacle. He felt that 
there would be a strong adverse reaction from employers and a lesser adverse 
reaction from the general public if availability of arrest record information were 
discontinued. 

The Chief of Police stated that any revision of the present practice to require 
summary reports in plain language would impose a great burden upon the Depart- 
ment. He stated, however, that the notational system used for the records could 
be revised somewhat to be more plain and specific with regard to abbreviations. 
He disfavored the elimination from the records furnished to the public of entries 
not reflecting final convictions or forfeitures or of entries reflecting off"enses 
committed prior to an "amnesty" date, inasmuch as this might require the pro- 
duction of duplicate files. He also felt that such measures would provide a distorted 
picture of the true facts. Although an electronic data processing system would 
render such measures administratively feasible, he stated that it would be three 
years before an automated filing system would be operational for central criminal 
files. 

The Chief of Police recommended that a fee be charged for copies of records 
and that they be furnished to employers directly upon the tender of signed releases 
from individuals whose records were requested. He further recommended that 
an instruction and abbreviation manual be provided to aid employers in inter- 
preting police records. He proposed that a school be conducted in the Police 
Department for personnel administrators so as to teach them how to interpret 
police records. 

RECOMMENDATIONS 

The Committee, responding to the employers' interest in obtaining full infor- 
mation concerning past acts of misconduct by employees or prospective employees, 
and responding to the competing interest of employees in the non-disclosure of 
data that might be unfairly prejudicial or misleading by virtue of incompleteness 
or incorrectness or lack of relevancy, has concluded that substantial restrictions 
should be placed upon the availability of raw record data from police files. The 
Committee, therefore, recommends the following specific measures: 

1. That no record, copy, extract, compilation or statement concerning 
any record relating to any juvenile offender or relating to any juvenile with 
respect to whom the Metropolitan Police Department retains any record or 
writing, shall be released to any person for any purpose except as may be 
provided vmder D.C. Code, Section 11-1586; provided, that the release of 
such information to members of the Metropolitan Police Department, and 
the dissemination of such information by the Metropolitan Police Depart- 
ment to the police departments of other jurisdictions wherein juveniles 
apprehended in the District of Columbia may reside, shall be authorized. 

The effect of recommendation 1 would be to terminate and prohibit the police 
clearance system with respect to juveniles (i.e., persons apprehended for or 
otherwise involved in criminal activity prior to becoming 18 years of age). It 
would also prohibit the use of juvenile records for administrative purposes (e.g., 
by the Department of Motor Vehicles in connection with determinations as to 
the propriety of issuance of learners' and operators' permits). It would not, 
however, in any way affect the practice of the various police departments in the 
Washington Metropolitan Area of exchanging information concerning juvenile 
contacts made in one jurisdiction respecting persons residing in other jurisdictions. 

2. That vmexpurgated adult arrest records shall be released to law en- 
forcement agents upon request, without cost and without the authorization 
of the persons to whom such records relate and without any other prerequisite, 
provided that such law enforcement agents represent that such records are 
to be used for law enforcement purposes. The term "law enforcement agent" 
is limited in this context to persons having cognizance of criminal investiga- 
tions or of criminal proceedings directly involving the individuals to whom 
the requested records relate. The term includes judges, prosecutors, defense 
attorneys, police officers. Federal agents having the power of arrest, clerks 
of courts, penal and probation oflScers and the like. It does not include private 
detectives and investigators; personnel investigators, directors and officers; 
private security agents or others who do not ordinarily participate in the 
process involving the detection, apprehension, trial or punishment of criminal 
offenders. 



197 

The eflfect of recommendation 2 would be to limit the availability of raw arrest 
record data to police uses. It would prevent the consideration of such raw data by 
Government administrative officers, as well as by private employers. Existing 
licensing practices with respect to various businesses, occupations and profes- 
sions would require some modification by virtue of this recommendation inas- 
much as raw police records are presently available to the District of Columbia 
administrative agencies concerned. 

The Committee recognizes that the Federal establishment cannot be bound 
as to the ultimate uses to which such unexpurgated records may be put. Never- 
theless, the Committee is of the opinion that the limitation of such uses to the 
sphere of law enforcement is consistent with the national interest and with en- 
lightened personnel policy. 

3. That, subject to the foregoing, adult arrest records shall be released 
in a form which reveals only entries relating to offenses which have resulted in 
convictions or forfeitures of collateral. 

The effect of recommendation 3 would be to eliminate from arrest records 
to be used for other than police purposes all references to alleged misconduct 
which has not resulted in adjudications of guilt or forfeitures of security posted 
to insure court appearances. The Committee contemplates that the released 
documents would be specially prepared and would not bear any indicia of dele- 
tion or change of the original records. 

4. That, subject to the foregoing, adult arrest records shall be released in 
a form which reveals only entries relating to offenses committed not more 
than 10 years prior to the date upon which such records are requested; ex- 
cept that, where an offender has been imprisoned during all or part of the 
preceding 10-year period, the record shall include entries relating to such 
earlier conviction. 

The effect of recommendation 4 would be to provide an "amnesty" with re- 
spect to the availability of information from police records concerning offenses 
committed in the relatively distant past. The Committee is of the opinion that 
such an "amnesty" would be of considerable psychological significance to the 
reformed offender and that the possibility of wiping the figurative slate clean 
would constitute an incentive for reform. The Committee believes that a 10-year 
"clean" period would provide a realistic basis for inferring that the beneficiary 
of such an amnesty had indeed reformed. 

5. That, subject to the foregoing, copies or extracts of adult arrest records 
or statements of the non-existence of such records shall be released to appli- 
cants therefor upon the payment of fees to be based upon the costs of editing 
and producing such copies, extracts or statements; provided, that applicants 
who are not the persons to whom such records may relate must, in addition 
to the required fees, present releases in appropriate form executed by the 
persons to whom the records may relate; provided further, that no fee shall 
be required with respect to any record solicited by any agent of the Federal 
or District of Columbia Government for a governmental purpose. 

The effect of recommendation 5 would be to require persons making use of 
arrest records to pay for the service rendered to them. In view of the search, editing 
and transcription required for the production of the documents, the imposition 
of a fee is economically justifiable. A fee should not, however, be assessed for 
records which are to be used in the discharge of governmental functions, including 
the licensing of individuals and businesses and the employment of individuals by 
government agencies. The Committee is of the opinion, however, that no record 
should be disclosed for other than legitimate law enforcement purposes without 
the prior specific consent of the affected indixTdual. Thus, administrative agencies 
should be reqviired to tender releases but should not be required to pay fees. 

6. That Article 47 of the Police Regulations of the District of Columbia be 
amended to provide that it shall be an offense punishable by a fine not to 
exceed $300, or by imprisonment for not more than 10 days, or both, for any 
person to require as a condition of employment the production of any arrest 
record or copy, extract or statement thereof at the expense of any employee 
or applicant for employment to whom such record may relate. 

The effect of recommendation 6 would be to discourage employers from shifting 
the burden of expense for the procurement of arrest records to affected employees 
or applicants for employment. 

7. That, subject to the foregoing, no adult arrest record be released to any 
person, corporation or Government agency without such person or organi- 
zation or the duly authorized personnel agent thereof having first obtained 
from the Metropolitan Police Department, at the cost of production thereof, 
an instructional manual relating to such records. 



198 

The eflfect of recommendation 7 would be to insure that there would be available 
to persons using arrest records, indoctrinational material relating to the proper 
interpretation of symbols and abbreviations used in the records and relating to the 
relevancy and limitations of the records. Inasmuch as the records to be released 
would reflect only entries involving convictions or forfeitures, and thus should 
be relatively simple, it appears that a carefully prepared instructional booklet 
would be sufficient. The Committee is of the opinion, therefore, that courses of 
instruction for this purpose would not be necessary or feasible. 

The member of the Committee representing the Metropolitan Police Department 
does not concur in all of the foregoing recommendations. He reserves the right to 
file a minority report at a later date. The Committee acknowledges that it is sub- 
mitting this report without affording the dissenting member an opportunity to 
formulate, a minority report for submission herewith. 
Respectfully submitted, 

Charles T. Duncan, 

Chairman. 
Kenneth L. Hardy, 
Jean H. Sisco, 
Philip J. Daugherty. 



[Prom the Congressional Record, Extensions of Remarks, Mar. 3, 1972] 
Improper Use of Arrest Records as an Invasion of Privacy . 

(By Hon. Don Edwards of California) 

Mr. Edwards of California. Mr. Speaker, the year 1984 is still more than a 
decade away, but few of us realize how close we have come to the situation so 
graphically depicted by George Orwell. In the February 27, 1972, Washington 
Post there appeared an excellent article entitled "An Information Monster that 
Threatens Our Privacy," in which author Roger Wilkins outlined in a compelling 
manner the way collection of information by the Government is stifling dissent 
and invading individuals' privacy. I wish to commend this article to my colleagues 
and insert it in the Ri:cord at this point. I also wish to call to the attention of 
my colleagues the fact that Judiciary Subcommittee No. 4, of which I am chair- 
man, will on March 15, 1972, begin hearings on H.R. 13315, which deals with the 
use of records of arrest on which there has been no conviction — a subject discussed 
by Mr. Wilkins in the article to which I have referred. 

(The article follows:) 

The Revolution in Law Enforcement Technology Has Produced an 
Information Monster That Threatens Our Privacy 

(By Roger Wilkins) 

A silent creeping — one might even say creepy — revolution is taking place in the 
technology of law enforcement data collection and dissemination. The computers 
have entered the field and their potential for severely denting — if not destroying — 
the individual's right to privacy is growing by leaps and bounds. 

Last year in a privacy case in the U.S. District Court in the District of Columbia, 
Judge Gerhard Gesell wrote: 

"A heavy burden is placed on all branches of government to maintain a proper 
equilibrium between the acquisition of information and the necessity to safe- 
guard privacy. Systematic recordation and dissemination of information about 
individual citizens is a form of surveillance and control which may easily inhibit 
freedom to speak, to work, and to move about in this land. If information avail- 
able to government is misused to publicize past incidents in the lives of its citizens 
the pressures for conformity will be irresistible. Initiative and individuality can 
be suffocated and a resulting dullness of mind and conduct will become the norm." 

Judge Gesell went on to decide that while the arrest record of a person who had 
been convicted of no crime could be maintained for federal employment and 
"strictly law enforcement purposes," the FBI is "without authority to disseminate 
arrest records outside the federal government for employment, licensing or related 
purposes." 

Unfortunately, this lucid principle is being eroded by a voracious computer 
industry, two powerful and competing federal bureaucracies, hardware-loving 
police departments around the country and by a Congress which seems not to 
have the sensitivity, the will or the capacity to do anything to arrest or reverse 
the trend. 



199 

Late in the 60s, the first tendrils of what is fast becoming a patchwork — but 
nonetheless enveloping — information giants were beginning to emerge in the form 
of the FBI's National Crime Information Center system (NCIC). That system 
was designed to provide simple computerized information to law enforcement 
people on wanted persons, and identifiable stolen property such as license plates, 
securities, boats and guns. At the same time, from 1966 through 1968, the Justice 
Department's Office of Law Enforcement Assistance was providing various police 
jurisdictions about one million dollars a year to develop electronic data retrieval 
systems . 

Then came the deluge. Since 1968, the Law Enforcement Assistance Adminis- 
tration, the much better funded succe.ssor to OLEA, has dispensed more than 
$46 million for a variety of such projects all over the nation. Some went to states 
for development of a greater organized crime intelligence collection capacity. 
Other states began using LEA A funds to develop systems related to civil disorders. 
Whereas earlier efforts had been fairly clearly directed toward information useful 
in crime detection and prevention, the guidelines began to become murky in the 
civil disorders field. One state, for example, indicated in its grant application that 
it would collect the names and information about people who "actively pursue 
their constitutional rights." 

The most significant of the LEAA funded projects, however, was Project Search, 
which began as a cooperative effort among six states to standardize and computer- 
ize personal criminal history records and tie them into a central index and switch- 
ing center in order to provide each participating state with quick and easy access 
to the relevant records of each of the others. By the summer of 1971, the number of 
states in the project had grown to 20 and the problems had grown proportionately. 

The first strains emerged when Project Search's Committee on Security and 
Privacy issued a study which attempted to formulate procedural guidelines safe- 
guarding the public. Among the committee's recommendations were limitations 
on the type of data to be collected, periodic re-evaluation of the data in order to 
ensure accuracy, the development of procedures for an individual to have access 
to his file and stringent secvirity precautions to prevent unauthorized individuals 
from obtaining access to the stored information. The head of the FBI's NCIC 
system argued that if such guidelines were needed at all. Project Search was the 
wrong organization to develop them and that in any event, it was too early to 
conduct such studies. 

Shortly thereafter, it became clear that the FBI hoped that Search would be 
controlled, not by the states, but by the FBI and that its electronic systems 
would be tied to the Bureau's National Crime Information Center System. 
LEAA and the states balked. They argued that the original concept of Search was 
a bulky central index of criminal activity — like a telephone book — with the basic 
records being retained in the states rather than the creation of a federally con- 
trolled national criminal information and intelligence data bank. 

As the dispute raged, Search oozed beyond its original confines into areas 
never envisaged by the original concept. Under the rules developed by LEAA, 
such charges as juvenile and public order offenses, drunkenness and vagrancy 
would be excluded, but serious crimes would be recorded. Those might include 
bigamy, cruelty to animals, failure to provide support to one's family and adultery 
as well as the traditionally serious crimes of murder, assault, burglary and robbery. 

Meanwhile, the FBI won its fierce bureaucratic battle within the Department 
of Justice with LEAA. On Dec. 10, 1970, the Attorney General transferred Search 
to the FBI. A year later, the Senate included in the FBI's appropriations bill 
language which appeared to restore to the FBI authority to share its information 
with certain classes of banks and also, in appropriate circumstances, with state 
agencies for employment and licensing purposes. In all the flurry and growth, 
the model codes for protection of citizens' privacy and the code of ethics drawn 
up by Project Search's Committee on Security and Privacy got buried. 

At this point the situation remains cloudy, but ominous. LEAA still makes the 
grants for the acquisition of computers and is pressing for expansion of the system. 
The FBI is tightening its control while also pressing for ever greater membership. 
The states, having warned the Attorney General prior to the transfer of Project 
Search to the FBI that "no matter what the Feds do, the states will continue to 
develop their own system or systems," are presumably doing just that. And any 
state or locality may, on its own initiative, store additional information in a system 
that later may be "Interfaced," to use a term of the trade, with the federal data 
bank. For example, the Kansas City, Mo., police department has stored, among 
other things, information on outstanding parking tickets, college students known 
to have participated in disturbances and "area dignitaries." 



200 

While this information-gathering monster grows and spreads, there is really no 
effective federal or state regulation of the whole system. Senator Ervin's Constitu- 
tional Rights Subcommittee heard some testimony on the subject from both ad- 
ministration proponents and from concerned and frightened citizens. Senator 
Mathias slipped an amendment into Title I of the Omnibus Crime and Safe Streets 
Act requiring LEAA to develop legislation regulating the activity. In response in 
September, 1971, Senator Hruska introduced the Criminal Justice Information 
Systems Security and Privacy Act of 1971. To date, no hearings have been held on 
the Hruska bill. 

Without debating the details of the Hruska bill, it is fair to say that it assumes 
that computerized dossiers collected by state and federal police organizations 
are part of our national life, that they are useful and that they are here to stay. 
And that is just the point. We apparently are off on another technological toot 
that leads God knows where without giving it a second thought. Nobody knew 
when Henry Ford rolled out his first Model A that the internal combusion engine 
would someday foul our cities. But now we ought to be sophisticated enough 
to know that a ride on the tiger's back is sure to cost at least a healthy nip on 
the nose, if not a great deal more. 

These issues raised require urgent analysis and broad national debate before 
the information monster entirely devours our privacy. Because of the complex 
interstate nature of the system and the federal government's deep involvement 
in its development, there is only one place where the debate can appropriately 
take place — in the Congress of the United States. And the first question that 
needs to be taken up is whether the public wants or needs this system. If Congress' 
answer is yes, then there is a pressing need for it to define a citizen's right of 
privacy and the limits which must be placed on the machines' almost unlimited 
capacity to pry, to store, and to regurgitate indiscriminately, mindlessly and on 
command. 

Right now only the Lawyer's Committee for Civil Rights under the Law, 
aided by the National Urban Coalition, is monitoring the growth of the beast 
and, laudable as that effort may be, it is not enough. 



201 
TECHNICAL REPORT No. 2 

July 1970 



SECURITY AND PRIVACY CONSIDERATIONS IN 
CRIMINAL HISTORY INFORMATION SYSTEMS 



Project SEARCH 

Committee on Security and Privacy 
Dr. Robert Gallati, Chairman 



i 



mm 






I SEARCH 




SYSTEM FOR ELECTRONK: 
ANALYSIS AND RETRIEVAL 
Of CRIMINAL HISTORIES 



202 



SECURITY AND PRIVACY CONSIDERATIONS IN 
CRIMINAL HISTORY INFORMATION SYSTEMS 



Approved for Publication: 




fL./l l^lLdz 



KobBrJiM, J. Gallati 
Ralph M. GLTMkunst 
j?. J. Hawkins 



Published By: 

Project SEARCH Staff 
California Crime Technological 

Research Foundation 
1108 14th Street 
Sacramento, California 95814 



W. L. Reed 




imh k! lj^<^^ 



David R. Weinstein 



203 

Material in this report has been derived from the efforts of all 

project personnel. 



PROJECT GROUP 

Orville J. Hawkins, Chairman, California 
Thomas J. Trimbach, Vice Chairman, 
Michigan 

Emery Barrette, Minnesota 
C. J. Beddome, Arizona 
Robert R. j. Gallati, New York 
Ralph M. Gutekunst, Maryland 
Hugh W. McLeland, Texas 
James N. O'Connor, Washington 
William L. Reed, Florida 
George B, Trubow, Maryland * 
David R. V\'einstein, Connecticut 

STANDARDIZATION TASK FORCE 

Edward T. Mattson, Chairman, Minnesota 
Philip G. Tannian, Vice Chairman, 
Michigan 

Wesley R. Barrett, California 

Robert M. Beck, Arizona 

Jerome J. Daunt, Washington, D.C. 

Sue S. Johnson, New York 

Donald F. King, Florida 

Mark A. Levine, Maryland 

Dexter B. Lyman, Connecticut 

James A. McCafferty, Washington, D.C. 

Paul D. McCann, New York 

H. W. McFarling, Texas 

Edward D. Miller, Connecticut * 

DeV\'itt Whitman, Washington 

STATISTICAL METHODS 
TASK FORCE 

Glenn Dafoe, Chairman, Michigan 
Wiliard H. Hutchins, \'ice Chairman, 
California 

Kelley Ballard, Washington 
Jerome J. Daunt, Washington, D.C. 
Charles M. Friel, Texas 
Charles Graham, Arizona 
Ralph M. Gutekunst, Maryland 
Donald F. King, Florida 
Nathan Mandel, Minnesota 
Wayne R. Mucci, Connecticut 
Vincent O'Leary, New York 
Charles E. Robinson, New York 
John G. Yeager, Pennsylvania 

STATE PROJECT COORDINATORS 

Lloyd Bastian, Florida 
Ronald Beattie, California 
C. J. Beddome, Arizona 
Page Carter, Washington 
Adam D'Ales.sandro, New York 

ames R. Donovan, Maryland 

■larold P. Higgins, Minnesota 

'eter Kleck, Texas 

idward O'Brien, Connecticut 
, ohn R. Plants, Michigan 

ilair I. Shirk, Maryland * 



PROJECT COORDINATION STAFF 

Paul K. Wormeli, Project Coordinator 
Robert L. Marx, Technical Coordination 
George A. Buck, Administrative 

Coordination 
Steve Kolodney, Statistical Coordination 

TELECOMMUNICATIONS WORKING 
GROUP 

Robert L. Marx, Staff Coordinator, 

California 

David Fergason, Michigan 
Donald F. King, Florida 
Charles E. Robinson, New York 
Joseph Ryan, Arizona 
R. L. Smith, California 
Michael Stump, Minnesota 
John Wunderlich, Maryland 

DATA BASE PREPARATION WORKING 
GROUP 

Robert L. Marx, Staff Coordinator, 

California 

Glenn Dafoe, Michigan 
Elmer Hauge, California 
Donald King. Florida 
Joseph Oliver, New York 
Joseph Ryan, Arizona 
Larry Hedin, Minnesota 
Warren Hansen, Maryland 

STATISTICAL ADVISORY COMMITTEE 

Vincent O'Leary, Chairman, New York 

Ronald Beattie, California 

Charles Friel, Texas *■ 

Ralph M, Gutekunst, Maryland 

Donald King, Florida 

James McCafferty, Washington, D.C. 

Paul Sylvestre, Washington, D.C. 

LAW ENFORCEMENT ASSISTANCE 
ADMINISTRATION PARTICIPANTS 

Lewis Arnold 
Melvin Axilbund 
Clarence Coster 
George Hall 
Charles Kinderman 
Patricia Rowen 
Alfred Sansone 
Daniel Skoler 
Paul Sylvestre 
Anthony Turner 
Richard Velde 
Paul Woodard 



' Pa>.t members. 



Ill 



204 



ACKNOWLEDGMENT 

The basis for this report is Report No. 1 of the 
Committee on Security and Privacy, submitted and 
accepted as a working document on May 25, 1970. 
The SEARCH Project Group wishes to acknowledge 
the vigorous and dedicated efforts of the committee 
and its consultants in producing this important re- 
port for the Project SEARCH participants. 

The committee members include: 

Robert R. J. Gallati, Chairman, New York 

Emery Barrette, Minnesota 

C. J. Beddome, Arizona 

George F. Hall, Washington, D.C. 

H. W. McFarling, Texas 

David Weinstein, Connecticut 



IV 



205 



TABLE OF CONTENTS 

page 

Approval for Publication i 

Project Personnel iii 

Acknowledgment iv 

Chapter 1. Introduction 1 

I. Background 1 

II. Scope of the Report 8 

Chapter 2. Recommended System Policies Related to Security 

and Privacy 11 

Chapter 3. Legal and Operational Aspects of Privacy 15 

I. Scope of the Files 15 

II. Collection of Search Data 18 

III. Storage of System Data 20 

IV. System Access 23 

V. Uses of System Data 28 

^ VI. Organizational Structure, Controls, and Sanctions 34 

Chapter 4. System Security 39 

Appendices: 

A. Code of Ethics 45 

B. Biographical Data — Security and Privacy Committee 47 

C. Glossary of Terms 49 

D. Bibliography 53 



206 



Chapter 1 
Introduction 

This report is designed to serve as a reference on matters of security 
and privacy for all those individuals who may participate, observe, 
assess, or otherwise become involved in the demonstration of Project 
SEARCH or the development of a future system for an interstate ex- 
change of criminal histories. 

Project SEARCH, an acronym for System for Electronic Analysis and 
Retrieval of Critninal Histories, is funded by the participating states and 
the Law Enforcement Assistance Administration (LEAA). LEAA was 
established in the Department of Justice to administer funds provided 
under the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 
197. 

The specific objectives of this report are: 

1. To construct a fundamental working document that enumerates 
potential security and privacy problems and presents solutions 
for the guidance of participants in Project SEARCH during the 
demonstration period. 

2. To provide a dynamic framework of essential elements of 
security and privacy for any future national system which may 
develop as a result of Project SEARCH. 

3. To outline the kinds of security requirements and self-imposed 
disciplines that the participants have, by their own initiative, 
levied upon themselves and their colleagues in Project 
SEARCH. 

I. Background 

To develop a proper context for the discussion of security and privacy 
issues, four major background statements are pertinent: 

1. The requirement for a computerized national system for ex- 
changing criminal history data. 

2. The system concept being tested by Project SEARCH as a proto- 
type. 

3. The security and privacy issues relevant to this system. 

4. The Project SEARCH response to these issues. 

The intention in this section is to provide a reasonably concise review 
of these four points. 

Requirements for a National System 

Criminal justice agencies frequently require, in making decisions 
regarding a suspect or offender, knowledge of his prior involvement 
with the criminal justice system. The specific data needs vary in both 
content and urgency, but the general need is for information about 
prior arrests, court dispositions, and correctional involvements and out- 
comes. 



207 

A partial, manual system currently exists that supplies some of the 
information needed. Fingerprints submitted to the FBI and to some of 
the states in conjunction with a criminal justice transaction (e.g., arrest 
or incarceration) are used as a basis for recording these transactions on 
a rap sheet. The rap sheets maintained and distributed by state agencies 
and the FBI generally contain complete listings of arrests and prison 
admissions, as these two processes regularly involve fingerprinting. 

The FBI and most state identification bureaus attempt to collect court 
disposition data for inclusion on the rap sheet, which is then available 
for responses to inquiries concerning offenders. 

The manual system suffers in two respects. First, the national system 
is voluntary, with the national coverage fulfilled only by the FBI, in 
performing a service to contributors. The lack of mandatory reporting 
limits file completeness. Second, the elapsed time to obtain the criminal 
history data through the mail is measured in days or weeks in most 
places and is, therefore, not useful in police or court actions which must 
be completed in minutes or hours. 

The specific functional areas requiring timely and complete informa- 
tion on a national basis are spread throughout the criminal justice sys- 
tem. Beginning with law enforcement, for example, in most police 
"on-scene" investigations where possible suspects are involved, the offi- 
cer requires immediate knowledge of prior record to aid in making 
decisions regarding search, detention, or arrest. 

Given factual knowledge of the occurrence of a crime and that the 
suspect was in the vicinity, the law enforcement officer's aim is to 
obtain sufficient information to determine the extent to which further 
police investigation should be conducted. For this purpose, it is neces- 
sary to quickly supply the investigator with sufficient data to pursue the 
case in an intelligent manner. Further information about the suspect is 
vital knowledge for the officer charged with arresting the subject; for 
example, does he have a record of violent behavior or of using lethal 
weapons? 

Aside from the value of rapid response in an on-the-scene investiga- 
tion or imminent arrest situation, a rapid and complete nationwide 
record search would assist the police in proper charge determination. 
It would also support procedures enabling the police to issue a sum- 
mons, in certain cases, in lieu of a formal arrest and possible detention. 
More complete and timely criminal histories will also help police deter- 
mine court jurisdictions and make other decisions concerning bail, alert 
them to an arrestee's present criminal justice status (e.g., whether he is 
on release pending trial, or is on probation or parole), and provide 
additional investigative leads and data valuable for effective interroga- 
tion. 

A prosecuting attorney could benefit by more timely and complete 
data in those cases, for example, where there is a lapse of time between 
arraignment and trial during which the accused has been free on bail 
and has been involved in some other criminal activity. Further, infor- 
mation on a previous criminal offense committed in another part of the 
country might be received before initial arraignment or grand jury 
proceedings rather than afterwards, as is now often the situation. The 
case of an active, mobile check passer is a good illustration of the kind 
of situation when rapid access to complete data is likely to be of assist- 
ance. 

2 



208 

Probation officers would be materially assisted in evaluating whether 
an offender should be "released on his own recognizance", since rapid 
notification of the nature of an offender's previous record may play a 
principal role in this determination. In the absence of adequate informa- 
tion, a prosecutor is likely to recommend, and a court will be inclined 
to set bail at a "safe" level in order to hold the defendant — often in cases 
where he might well be released pending trial. Indeed a prudent judge 
might have no other choice since he has no knowledge of the defendant 
other than what is presented to him at the bail hearing. He "errs" on 
the safe side of community protection, unless informed. 

In addition, both the probation officer and the court should receive 
timely notice of a probationer's arrest for a new offense, since the arrest 
usually requires reconsideration by the court of the probationer's pro- 
gram or status. Similarly, parole officers and correction officials are 
directly concerned when a parolee commits a new criminal act; any new 
arrest while on parole — whether felony or misdemeanor — is sufficient 
reason for review of the parolee's program and may be cause for his 
return to the penal institution. 

To satisfy these needs, an improved system would have to have the 
complete data available only through a national system. Local criminal 
justice agencies serve limited population and geographic areas; but the 
population is increasingly mobile. Although a large police agency may 
contain the criminal records of 1,000,000 individuals and a medium- 
sized agency may hold records of only 7,000 individuals, both records 
systems are affected by criminal mobility. 

A study in New York State demonstrated the extent and consequence 
of this mobility. In one large up-state city, almost 30 percent of the 
persons who have been arrested one or more times for fingerprintable 
offenses have arrest records in other jurisdictions within the state. The 
problem is even more acute for chronic offenders; in the same city 
approximately 55 percent of persons arrested two or more times have 
records in other in-state jurisdictions. For the state as a whole, the 
respective percentages for the "average" jurisdiction are 29 percent and 
47 percent. Although the percentages may decrease as the geographical 
area is increased, there is still a substantial degree of mobility in regional 
and national terms. 

There are many other situations in carrying out criminal justice 
functions that could benefit by the rapid availability of criminal history 
information. A complete analysis of this requirement is beyond the 
scope of this report. It is clear that a system is required that will provide 
a means of determining the nature of prior criminal involvement, in 
time to be useful for some of the critical decisions related to arrest and 
prosecution. 

Project Search as a Prototype 

These operational factors have led to the conclusion that a national 
system is necessary, and that it must be computer-assisted to achieve the 
needed responsiveness. The need for this system has been recognized 
for some time. For example, the President's Commission on Law En- 
forcement and the Administration of Justice spoke of the need for "an 
integrated national information system". Specifically, the Commission 
recommended that "there should be a national law enforcement direc- 



209 

tory that records an individual's arrest for serious crimes, the disposi- 
tion of each case and all subsequent formal contacts with criminal 
justice agencies related to those arrests". 

Project SEARCH was begun in July of 1969, with 10 states * par- 
ticipating. The main goals of Project SEARCH are to: 

• Evaluate the technical feasibility and operational utility of a coop- 
erative interstate transference of criminal history data. 

• Demonstrate the capability to automate state-collected criminal 
statistics for retrieval by selected state and federal agencies. 

The system concept is based on the maintenance of individual state- 
held files and the existence of a central index, directly accessible by users 
in each state and containing summary data on each state-held file. The 
central index will respond to an inquiring terminal by providing per- 
sonal descriptors and identifying numbers, an abbreviated criminal pro- 
file, and the name of the state or agency holding the full criminal history 
record (Agency of Record). The requesting state may then directly 
access the desired file from the Agency of Record. 

The system concept also contemplates that when a transaction takes 
place between an offender and an agency in a state other than the 
Agency of Record, that state becomes the Agency of Record, the crimi- 
nal history file is transferred from the previous Agency of Record, the 
file is updated, and the central index is updated to reflect these changes. 

The full criminal history files maintained by the Agency of Record 
will include a set of required data plus other optional data required for 
internal state use. The recorded data includes a minimum set of per- 
sonal descriptors and identifying numbers, and a record of each crimi- 
nal justice transaction between the offender and the involved criminal 
justice agencies. These transactions (for felonies or gross misdemeanors) 
may include information on and outcomes of arrest, pre-trial hearing, 
trial, sentencing, and correction including probation/parole. 

The central index, containing a count of arrests and convictions by 
major offense category, is designed to be sufficient for answering inqui- 
ries by officers in the field needing a quick response as to whether or 
not a person was in the system (has a prior record) and some brief 
indication of prior offenses. The index "points" to a state file which is 
designed primarily to allow other less urgent needs to be satisfied. The 
state file indicates dates and agencies where the subject has had prior 
involvement with the criminal justice system, thereby allowing a more 
refined "pointer" for obtaining further information. 

The intent is that the criminal summary contained in the central 
index could satisfy over half of the inquiries, avoiding the second in- 
quiry to a state. The state inquiry should then satisfy a major portion 
of the remaining needs, minimizing the effort required in contacting 
numerous local agencies for more detail on the offender. 

To test the feasibility of this system concept, a prototype is being 
constructed. Seven of the ten SEARCH states are each converting ap- 
proximately 10,000 criminal histories for loading into the central index, 
and also creating the more detailed computerized file in their own state. 

The Project SEARCH system is designed so as to permit remote 
terminal access only by personnel of government criminal justice agen- 
cies, for purposes associated with official criminal justice functions. 

* ArizDiiii, Califoniiii, C'onnti. tit iit, Florid;!, Miirylami. Michig.in, Minnesota, Ni-w York, Texas, 
and Washington. Colorado, Illinois, New JerM-\ , Ohio, and Pi'nns\ Ivania haxe also been 
desiunatid as "odiiial ol)Sir\ir stalfs". 

4 



210 

The prototype system will be demonstrated during July and August 
of 1970. An evaluation period will follow, and recommendations will be 
made regarding the feasible development of an ongoing, fully opera- 
tional, nationwide system. 

Security and Privacy Issues 

It is essential to clearly and carefully identify the specific issues 
related to system security and rights of personal privacy that should 
properly be associated with the design and operation of a nationwide 
system for access to criminal history data. The logical and rational 
development of procedures which ensure a reasonable protection of 
individual rights of privacy, while maintaining the capability required 
by criminal justice agencies, will lead to a more credible and useful 
system. Conversely, a lack of attention to correctly stated issues is likely 
to produce confusion in the system purposes and procedures, and to 
diffuse the benefits which could be gained by having an operational 
system. 

It is important to point out that the discussion of security and privacy 
issues follows the basic assumption that some kind of a national system 
is essential. Within that context, the issues can then be described in 
terms of implications for the system. 

From an operational point of view, there are three basic problem 
areas that are relevant to security and privacy: 

• Unintentional errors. Ranging from typographic errors to mis- 
taken identities, there is always the possibility that the data finally 
stored in the system will be incorrect, without any intent to make 
it so. 

• Misuse of data. Information can be used out of context or for 
purposes beyond the legitimate criminal justice functions, both by 
persons who are actually authorized access and by those who ac- 
quire the information even without authorization. 

• Intentional data change. The data maintained can be destroyed or 
modified to accomplish the same objectives as described under 
misuse, or to restrict the proper and effective performance of crimi- 
nal justice functions. It has been suggested that organized crime 
may attempt to penetrate the system for this purpose. 

The critical point here is that these problems are not unique to a 
computerized criminal history system, or even to criminal justice. The 
same problems exist with all partly sensitive public records. The police 
agencies throughout the country and the FBI have long recognized the 
need to carefully control the records under their cognizance. The FBI 
and state identification bureaus generally refuse, except where required 
by law, to divulge information in their files to persons not connected 
with the criminal justice system. Every effort is made to insure that the 
final positive fingerprint-based identification is performed prior to the 
release or application of information contained on the existing criminal 
rap sheets. 

Therefore, the fundamental issues to be addressed in Project 
SEARCH, and in any subsequent nationwide system, are not just 
related to these problem areas, but rather to: (1) the degree to which the 
consequences or these problems are substantially different, and (2) the 

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211 

extent to which these problems will be more prevalent, when a com- 
puter with its associated high-speed response and remote access capabil- 
ity is part of the system. 

If the use of a computer does not substantially alter the consequences 
of unintentional mistakes or substantially increase the opportunity for 
misuse or data changes, then there would not be a requirement to 
develop policies and procedures in any more detail than for the manual 
system. 

The provision of remote-terminal, fast access has two effects — a dra- 
matic increase in the number of persons and agencies who can obtain 
the data, and a highly probable increase in the actual number of inqui- 
ries. The ease and speed of access will unquestionably cause more inqui- 
ries and thereby place more data in the hands of the increased number 
of users. Remote terminals also make it more difficult to control in- 
dividual access, as the system is generally only able to identify terminals 
and not operators. While it can be argued that this is no different than 
controlling access to a, mail room, in a sense, it is physically and me- 
chanically simpler to gain access to a terminal, particularly if it is 
unattended and the operating instructions unsecured. 

Given these possibilities, then, are the consequences or likelihood of 
occurrence {of the problems mentioned earlier) affected? 

Taking the problem of mistakes, it should first be pointed out that the 
recording ana processing discipline associated witn the use of a com- 
puter is likely to reduce the frequency of unintentional error. Many 
errors not caught are allowable to a manual system, but will inhibit the 
operation of a computer system. However, the consequences of some 
types of errors may be substantially amplified simply by the fact that 
there are many more persons with access and the system response speed 
may exceed the error detection and correction speed. 

The possibility that the data will be misused may increase substan- 
tially over a manual system, also, because of the increase in users and 
the easy access, unless controls are implemented. The computer itself 
introduces more opportunities for misuse. For example, a computerized 
file can be quickly searched by whatever data elements it contains, such 
that compilations of subjects can be prepared with respect to certain 
characteristics contained in the file. 

The opportunity for intentional modification or destruction of 
records is mcreased in proportion to the file centralization of the sys- 
tem. A disc or tape file is much more vulnerable to undetectable modifi- 
cations by programming or other means than the more inefficient 
dispersed paper file. 

Because of these factors, it is clear to the Project SEARCH partici- 
pants that the use of a computer as a basis for the system produces a 
fundamental, substantive change in both the possibility and conse- 
quences of possible problems. Accordingly, there must necessarily be a 
reconsideration of tne controls to be imposed on the system, particu- 
larly with respect to the security of records and in association with the 
preservation of reasonable rights of individual privacy. 

Project SEARCH Actions on Security and Privacy 

In response to this perceived significance of a new technological ap- 
proach to the criminal history file, the participants in SEARCH have 



212 

undertaken a program to address the security and privacy issues. Dur- 
ing the initial organization of the project, a Security of Records Subcommit- 
tee was formed under a Standardization Task Force to deal specifically 
with this issue. This subcommittee was chaired by Chief H. W. McFar- 
ling of the Data Processing Division of the Texas Department of Public 
Safety. Other members included Inspector Jerome Daunt of the Federal 
Bureau of Investigation, and Mr. Philip Tannian of the Wayne County 
Prosecuting Attorney's Office in Detroit, Michigan. 

The subcommittee was responsible for providing initial research and 
a general analysis of the security and privacy implications on the 
project. Their recommendations for a future course of action were 
presented to the Project Group (the policy-making body of the 
project). 

This group created a Security and Privacy Committee to review and 
carry forward the recommendations of the subcommittee. Dr. Robert 
Gallati, Director of the New York State Identification and Intelligence 
System, was appointed Committee Chairman. Other members included 
Emery Barrette, Executive Director of the Minnesota Governor's Com- 
mission on Crime Prevention and Control; George Hall, Director, Na- 
tional Criminal Justice Statistics Center, LEAA; Captain C. J. Beddome 
of the Arizona Department of Public Safety; Chief H. W. McFarling; 
and David Weinstein, Executive Director of the Connecticut Planning 
Committee on Criminal Administration. 

The committee immediately began to explore the specific issues 
related to the development of a computerized criminal history system 
and to identify the problems that should be addressed. 

The initial review of the problem areas which the committee would 
have to investigate brought forth a number of recommendations which 
were implemented. Among these were: 

• The decision to draft a Code of Ethics. 

• A recommendation that consultants be hired. 

• A resolution to limit the information content of the central index. 

• Acceptance of the principle of post-auditing. 

• Identification of specific questions that required policy decisions. 

The Project Group authorized the committee to select appropriate 
consultants to assist the members in their studies and the preparation 
of this report. The selected consultants were: Professor Charles Lister 
of Yale University Law School, and Mr. Jerome Lobel of Ernst & Ernst, 
Phoenix, Arizona. 

The committee has produced three major documents to date — the 
Code of Ethics (Appendix A), a set of procedures concerning security 
and privacy which were included in the SEARCH Operating Manual, 
and this report. Several additional tasks are currently in progress or 
planned for consideration: 

• Development of Model Administrative Regulations and Statutes 

The committee is presently studying model legal statutes for the 
participant states and model administrative regulations for partici- 
pant agencies. The conflict and diversity of legal structures sup- 
porting the identification function in the various states need to be 
reconciled for purposes of uniform requirements relating to 
security and privacy. Likewise, federal and state administrative 



213 

regulations need to be standardized so that they are uniformly 
protective of civil liberties. 

• Continuous Audit 

Project SEARCH is committed to the concept of continuous pre- 
and post-audit of its activities by an indepenaent group in order to 
check accuracy and reliability and detect discrepancies so as to 
permit adjustment of procedures and safeguards accordingly. The 
Project Group has agreed to the need for review by responsible 
persons outside the system itself as an essential check on the sys- 
tem, and the committee is presently exploring alternative mech- 
anisms for this process. 

• Evaluation and Feed- Back 

The committee is currently considering the various methods that 
should be utilized for continued monitoring, evaluation, and feed- 
back of matters relating to security and privacy. A recommenda- 
tion has been made by the committee that this consideration be 
made an integral part of the formal evaluation of Project SEARCH. 

• Education and Training for Participants 

The committee is currently mapping out an extensive educational 
program for all Project SEARCH participants. To the extent possi- 
ble, information concerning security and privacy will be incor- 
porated in the various demonstration and operation manuals. 
Similarly, this report and various brochures derived from it will 
serve to inform participants about maintaining a system that meets 
the proposed security and privacy standards. 

II. Scope of the Report 

The study results and recommendations which follow represent the 
major initial results of the effort expended by the Security and Privacy 
Committee. In keeping with the objective of providing material which 
will be of value to those engaged in either the Project SEARCH demon- 
stration or in designing a subsequent national system, the remainder of 
this report has four basic parts: a list of recommended policies, a discus- 
sion of the various aspects of privacy, a discussion of system security, 
and a set of pertinent appendices. 

• Recommendations 

Chapter 2 presents a set of recommended policies for consideration 
both in Project SEARCH and in any future system. These recom- 
mendations have been approved by the SEARCH Project Group. 

• Legal Aspects of Privacy 

Chapter 3 contains a detailed discussion of many of the design, 
procedural, and organizational aspects of the system as they affect 
personal privacy. General approaches are suggested to ensure that 
the issues raised are not overlooked in present and future plans. 

• System Security 

Chapter 4 turns to the operating system itself — equipment, soft- 
ware, and operating procedures — to describe controls and precau- 
tions that relate both to ensuring reasonable rights of privacy and 
protecting system data. 

• Appendices 

The major appendix is the Code of Ethics, which has been specifi- 
cally approved for publication by the SEARCH Project Group and 

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214 

first appeared in the Project SEARCH newsletter. A glossary and 

bibliography are also provided. 
Basically, the chapters following the recommendations attempt to 
analyze and recommend solutions to problems and issues that the com- 
mittee has identified initially as being of sufficiently serious long-term 
consequence to require immediate attention. The committee believes 
that there need not be a conflict between the safeguarding of reasonable 
rights to privacy and the construction of a shared information system 
such as Project SEARCH, if the following potential problem areas are 
given adequate consideration: 

1. The types of data that will be contained in the computerized 
files. 

2. The persons who will receive the data. 

3. The purposes for which the data will be used. 

4. The relationship between the system and the people whose 
criminal history records comprise the data bank. 

5. The organizational and administrative aspects of the system. 

The remainder of this report addresses these considerations. 

Finally, the most fundamental philosophical problem underlying the 
challenge of providing adequate security and privacy for Project 
SEARCH is one of a balancing of values. The need for an informed, 
effective criminal justice system must be balanced against the need for 
an individual to keep information about himself and his life private. 

The committee is dedicated to the enhancement of both individual 
freedom and effective criminal justice. One need not be sacrificed for 
the other. As new levels of progress are achieved, the delicate balance 
so essential to a just society will find equilibrium. 

It is in this spirit, based on an understanding of the dynamics of both 
society and technology, that the committee submits this report as a 
frame of reference for a correspondingly dynamic concept of security 
and privacy policy with respect to criminal history information sys- 
tems. There is every intent herein to encourage further progress in the 
development of this concept beyond what time and resources allowed, 
and in conjunction with the progress in the development of improved 
aids for criminal justice agencies. 



215 



Chapter 2 

Recommended System Policies 
Related to Security and Privacy 

The following list comprises those specific points that the committee 
believed to be important enough to establish a policy early in the deve- 
lopment of a final system concept. Although one or the direct tasks of 
the committee was to propose procedures for inclusion in the Project 
SEARCH Operating Manual that would be used during the demonstra- 
tion, it was very difficult to prepare procedures in the absence of gen- 
eral policies regarding a total system. It became apparent that a set of 
major policy statements had to be derived as an initial starting point for 
the procedures relative to the demonstration. Although it is not always 
easy to determine which policies could be directly implemented for a 
two-month demonstration, there was general agreement regarding the 
long-range issues to be treated. 

The Project Group officially approved these statements of recom- 
mended policy, and the procedures stipulated in the Operating Manual 
are based on this list. 

The reasoning behind each recommendation is presented in the dis- 
cussions of the following chapters, and a page is cited for reference to 
the appropriate discussion, where the context is explained. The recom- 
mendations are grouped into categories related to later discussion sec- 
tions. 

RECOMMENDED POLICY 
Data Content 

1. Data included in the system must be limited to that with the charac- 
teristics oi public record, i.e.: (Reference pages 16-18) 

a. Recorded by officers of public agencies directly and princi- 
pally concerned with crime prevention, apprehension, adjudica- 
tion, or rehabilitation of offenders. 

b. Recording must have been made in satisfaction of public duty. 

c. The public duty must have been directly relevant to criminal 
justice responsibilities of the agency. 

2. Participants shall adopt a careful and permanent program of data 
verification: (Reference pages 19-20) 

a. Systematic audits shall be conducted to insure that files have 
been regularly and accurately updated. 

b. Where errors or points of incompleteness are detected, the 
Agency of Record shall notify the central index (if necessary) and 
any participant to which the inaccurate or incomplete records have 
previously been transmitted. 

c. The Agency of Record shall maintain a record of all partici- 
pants that have been sent records. 

d. Within a state, a record should be kept of all agencies to which 
the system's data has been released. 

e. All known copies of records with erroneous or incomplete 

2—80774 

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216 

information shall be corrected. 

3. Purge procedures shall be developed in accordance with the Code 
of Ethics. Each participating agency shall follow the law or practice 
of the state of entry with respect to purging records of that state. 
(Reference page 20-22) 

4. A model state statute for protecting and controlling data in any 
future system should be drafted and its adoption encouraged. (Ref- 
erence pages 34-37) 

Rules of Access and Data Use 

5. Direct access to the system should continue to be restricted to pub- 
lic agencies which perform, as their principal function, crime pre- 
vention, apprehension, adjudication, or rehabilitation of offenders. 
(Reference pages 23-28) 

6. Definitional questions as to users should be presented for resolution 
to representatives of all the participating states in the system. (Ref- 
erence pages 23-28) 

7. In order to limit access, the following restrictions should be made: 
(Reference pages 26-27) 

a. Participating states should limit closely the number of termi- 
nals within their jurisdiction to those they can effectively supervise. 

b. Each participating state should build its data system around a 
central computer, through which each inquiry must pass for screen- 
ing and verification. The configuration and operation of the center 
should provide for the integrity of the data base. 

c. Participating agencies should be instructed that their rights to 
direct access encompass only requests reasonably connected with 
their criminal justice responsibilities. 

8. Requests from outside the criminal justice community to examine 
data obtained through the system should be honored only if the 
receiving agency is authorized access by local law, state statute, or 
valid administrative directive. Efforts should be made to limit the 
scope of such requirements. (Reference pages 26-27) 

9. The security and privacy staff should study various state "public 
record" doctrines and begin prompt efforts to obtain appropriate 
exemptions from these doctrines for the system's data. (Reference 
page 27) 

10. The use of data for research shall involve the following restrictions: 
(Reference pages 32-34) 

a. Proposed programs of research should acknowledge a funda- 
mental commitment to respect individual privacy interests. 

b. Representatives of the system shall fully investigate each 
proposed program. 

c. Identification of subjects should be divorced as fully as possible 
from the data. 

d. The research data should be shielded by a security system 
comparable to that which ordinarily safeguards system's data. 

e. Codes or keys identifying subjects with data should be given 
special protection. 

f. Raw data obtained for one research purpose should not subse- 
quently be used for any other research purpose without consent of 
system's representatives. 

g. Security and data protection requirements should be included 
in any research contract or agreement. 

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217 ' 

h. Non-disclosure forms should be required and the system 
should retain rights to monitor and, if necessary, terminate any 
project. 

Data Dissemination 

11. Data received through the system should be marked and readily 
identifiable as such. (Reference page 27) 

12. Heads of agencies receiving information should sign a copy of an 
appropriate recommended non-disclosure agreement. (Reference 
page 32) 

13. Educational programs should be instituted for all who might be 
expected to employ system data. (Reference page 30) 

14. Users should be informed that reliance upon unverified data is 
hazardous and that positive verification of identity should be ob- 
tained as quickly as possible. (Reference pages 30-31) 

1 5. Users should be clearly informed that careless use of this data repre- 
sents unprofessional conduct, and may be subject to disciplinary 
actions. (Reference pages 30-31) 

16. The central computer within each state, through which all data 
inquiries should pass, will screen all inquiries to exclude those that 
are inconsistent with system rules. (Reference pages 26 and 34) 

Rights of Challenge and Redress 

17. The citizen's right to access and challenge the contents of his re- 
cords should form an integral part of the system consistent with 
state law. (Reference page 28) 

18. Civil remedies should be provided for those injured by misuse of the 
system where not provided for by state law. (Reference pages 36-37) 

Organization and Administration 

19. The system participants should elect a board of directors (governing 
bodv) to establish policies and procedures governing the central 
index operation. (Reference pages 36-37) 

20. The system should remain fully independent of noncriminal justice 
data systems and shall be exclusively dedicated to the service of the 
criminal justice community. (Reference page 26) 

21. A permanent committee or staff should be established to consider 
problems of security and privacy and to conduct studies in that area. 
(Reference page 35) 

22. The permanent staff should undertake a program to identify differ- 
ences among the states in procedures and terminology, and to dis- 
seminate information concerning them to all participants. 
(Reference page 35) 

23. A systems audit should be made periodically by an outside agency. 
(Reference page 20) 



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Chapter 3 

Legal and Operational 
Aspects of Privacy 

The scope of this chapter is designed to address the legal, organiza- 
tional, and administrative guidelines relating to the protection of in- 
dividual privacy. Computer system security is addressed in the next 
chapter. The intent here is to provide an explanation of the rules that 
have been adopted for the Project SEARCH prototype demonstration, 
to discuss the considerations pertinent to the design of any subsequent 
system, and to explore the consequences of significant variations in or 
additions to the demonstration system. 

I. Scope of the Files 

The first and often most fundamental questions about any informa- 
tion system involves the nature of the information it will include. No 
one can deny government's right to collect and employ information 
about its citizens; to do so would condemn many governmental activi- 
ties to inefficiency and perhaps uselessness. The privacy issues instead 
turn on the quality, character and intended uses of the data that are to 
be collected. 

The Project SEARCH demonstration is built upon a series of inter- 
connected restrictions. These restrictions encompass both the classes of 
persons about whom data are to be collected and the kinds of informa- 
tion that are to be sought. The persons to be included in the file of the 
central index may be only those for whom at least one charge has 
reached a final disposition and for whom a Federal Bureau of Investiga- 
tion number has been assigned. The temporary decision concerning 
FBI numbers will be reviewed following the demonstration, and a per- 
manent decision made at that time. 

The information to be included in the state-held Project SEARCH 
files is a record of each of the individual's major steps through the 
criminal justice process. The information held in the central index will 
be even more narrowly restricted. The index will serve merely a direc- 
tory function and will include only identifying data, the location of the 
Project SEARCH state file, and a bare summary of arrests and convic- 
tions. 

The Code of Ethics, which is attached to this report as an appendix, 
makes it clear that information may be collected only upon the report 
of a crime and the commencement of criminal justice system proceed- 
ings. The trigger for beginning to take data is declared by the code to 
be the recording of arrest fingerprints. 

Project SEARCH Criminal History 

The computerized criminal history maintained at the state level will 



15 



219 

essentially include only the results of each formal stage of the criminal 
justice process: 

• The fact, date and arrest charge; whether the individual was subse- 
quently released and, if so, by what authority and upon what terms. 

• The fact, date and results of any pre-trial proceedings. 

• The fact, date and results of any trial or proceeding; any sentence 
or penalty. 

• The fact, date and results of any direct or collateral review of that 
trial or proceeding; the period and place of any confinement. 

• The fact, date and results of any release proceedings. 

• The fact, date and authority of any act of pardon or clemency. 

• The fact and date of any formal termination to the criminal justice 
process as to that charge or conviction. 

These entries, together with their coding and abbreviations, are more 
fully described in Project SEARCH Technical Report Number One. 
The report indicates, in addition, which of these entries are mandatory 
and which are optional for participating agencies. 

Finally, the file will include physical and other identifying data: 
The subject's full name 
Date and place of birth 
Sex 

Occupation 
Race 
Height 
Weight 
Hair color 
Features 
Skin tone 
Identifying marks 
FBI number 
Social security number 
Any operator's license number 
Any miscellaneous identifying numbers 

These identifying data are also explained in greater detail in Techni- 
cal Report Number One. It should be understood that Social Security 
and other identifying numbers are included in the Project SEARCH 
files in order to complete or verify individual identifications, and not 
as a device to permit linkages or data sharing with other information 
systems. 

It is important at this point to observe that these data are, in a funda- 
mental sense, matters or public record. They are recorded by public 
officers, in consequence or public duties, at the conclusion of relatively 
formal and often public proceedings. Much of this information is al- 
ready widely available to criminal justice agencies across the country, 
either through informal exchange arrangements or through the services 
of the Federal Bureau of Investigation. Moreover, as we will shortly 
show, much of this information is in many states available for inspec- 
tion by interested members of the general public. Project SEARCH will 
provide more rapid, complete, and accurate dissemination of these data. 

Data Exclusions 

To make the scope of the files quite clear, certain data are specifically 
excluded in the prototype system design. 

First, Project SEARCH excludes information concerning juvenile 
16 



220 

offenders, by which is meant the subject was by reason of his age (and 
not the age of any victim, co-defendant, or other relevant party) tried 
in a juvenile or family court. The reasons for this exclusionary rule are 
essentially those which already render much information concerning 
juvenile offenses confidential in many states; the widespread belief that 
this may contribute to the ultimate rehabilitation of the juvenile of- 
fender or delinquent. 

Second, the project participants have excluded misdemeanor drunk 
and traffic arrests. It is generally believed that additional less serious 
misdemeanors should be excluded, and some suggestions along these 
lines were made by the Standardization Task Force. In view of the 
complications in data conversion, and the importance of distinguishing 
between file content at the state level and at the central index level, no 
further restrictions were imposed for the demonstration. However, the 
Security and Privacy Committee believes that further studies should be 
conducted to specify inclusion or exclusion of specific misdemeanors in 
any future system. 

Third, the project's Code of Ethics explicitly excludes unverified data 
such as that emanating from intelligence sources". The intent here is to 
avoid the use of data resulting from tips, rumors, or second-hand allega- 
tions that have not been formally substantiated or derived from official 
criminal justice proceedings. 

These three categories of excluded data were designed both to provide 
reasonable protection of individual privacy and to prevent the use of 
unreliable or inconclusive data for purposes of important criminal jus- 
tice decisions. In combination, they represent a series of fundamental 
restrictions upon the proper functions of data systems; they should 
certainly be regarded as essential limitations upon any future system. 

Project SEARCH Privacy Implications 

It is believed that these restrictions will create a data system that is 
limited and relatively hazardless. As we have observed, much of the 
information it will include is the consequence of public proceedings; 
much of it is already available to criminal justice agencies across the 
country through the services of the Federal Bureau of Investigation. 
The demonstration system does not include subjective evaluations (ex- 
cept as to certain physical characteristics) by police, judges, or detention 
authorities. It does not include intelligence data, unsubstantiated re- 
ports or conjectures. Whatever the risks of recording and disclosure 
errors (and these are discussed below), the demonstration system is 
restricted to essentially hard data that can and should be thoroughly 
verified. 

In this connection, a brief examination of the doctrine of public 
records may be instructive. The laws of every state guarantee, and long 
have guaranteed, the rights of individual citizens to inspect and copy 
wide categories of public documents. These rules were recently ex- 
tended by statute to many of the records and documents of the federal 
departments and agencies. Public records are commonly not defined 
with any great precision, but in general they include all books, memo- 
randa, and other documents either required by law to be kept or neces- 
sary for the effective discharge of a public duty. The various rights of 
access to these records are intended to permit public surveillance of the 



17 



221 

activities of government. It has been argued since the eighteenth cen- 
tury that popular control of government has as its principal prerequisite 
the general availability of timely and accurate information about the 
conduct of public affairs. Public business, it has been thought, is the 
public's business. The terms of these rights of access vary widely among 
the states, and it should not be supposed that they are free from impor- 
tant exceptions. 

Nonetheless, it can at a minimum be said that much of the informa- 
tion included in Project SEARCH would be available from other 
sources in many states to suitably interested private citizens. This is not 
a situation without inconveniences and risks, and we urge that out-of- 
state data obtained through Project SEARCH should be protected from 
any local public records statutes. 

The committee recognizes that the situation could be quite different 
if the scope or content of the files of a future system were appreciably 
altered. If, for example, the files of a future system included intelligence 
data or data that were otherwise relatively unverified, the threats to 
individual interst, including privacy interests, could be very significant. 
Important criminal justice decisions about an individual might be predi- 
cated in part upon unsubstantiated, possibly inaccurate or incomplete 
representations in his file. His employment and other oppotunities 
might be injured. His reputation among his family, friends and associ- 
ates might be irrevocably harmed. As these hazards became more seri- 
ous and common, the importance of rigorous constraints upon the 
dissemination and use of data would markedly increase. If this occurs, 
it could result in the creation of a far more restrictive set of operating 
procedures which could be quite costly. 

The committee therefore believes strongly that the data included in 
any future criminal history system should be limited to those with the 
characteristics of public records. It accordingly recommends that any 
such system should adhere to the exclusionary rules described above, 
and that all data in a future system should satisfy the following minimal 
requirements. 

First, the information must have been recorded by an officer or em- 
ployee of a public agency directly and principally concerned with the 
prevention of crime or the apprehension, adjudication and correcton of 
criminal offenders. 

Second, the recording must have been made in satisfaction of a public 
duty or at least must have been essential for the satisfaction of such a 
duty. 

Third, this public duty must have been directly relevant to the crimi- 
nal justice responsibilities of the agency with which the recording offi- 
cer is employed or associated. 

II. Collection of SEARCH Data 

The first operational process in which guidelines are appropriate for 
providing reasonable protection of privacy is the data system's collec- 
tion process. It is important at the outset to recognize the reorientation 
this requires in the responsibilities of data systems. The customary 
standard for the adequacy of a system's data collection process would 
appear to be whether that process will produce timely information of 



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222 

a kind and quantity that will suffice to support the system's various 
functions. The standard is self-defined, in that it looks inward to the 
structure of the data system and outward only to the demands of the 
system's clients. It disregards, or tends at least to disregard, external 
costs. If, on the other hand, considerations of privacy are thought to be 
pertinent, a panoply of new values and interests Secome important, 
giving attention to the system's subjects as well as to its clients. 

A concern for privacy requires that a system's data be accurate and 
complete, because of the injurious consequences that may follow for the 
data's subjects. Privacy requires, moreover, that data collection be lim- 
ited precisely to the information that is justified by the legitimate func- 
tions of the data system. 

Project SEARCH Data Collection Restrictions 

The collection process provided for Project SEARCH is well cal- 
culated to satisfy these constraints. The information included in the 
demonstration system is the product of formal and relatively well- 
defined steps in the criminal justice process: 

Arrest and consequent fingerprinting 

Arraignment 

Trial 

Detention 

Parole proceedings 

Release 

For purposes of the demonstration system, the data will be those 
already recorded by employees and agents of the participating public 
agencies. 

Data Accuracy 

Much more difficult issues arise from questions about the accuracy 
and completeness of the records included even in the demonstration 
system. There is every reason to believe that rap sheets, particularly 
those initiated or updated relatively recently, faithfully record the 
criminal histories of their subjects. No body of evidence known to the 
committee suggests that these files are generally or even frequently 
erroneous. 

Nonetheless, it must be candidly acknowledged that inaccuracies are 
unavoidable in any system involving many thousands of records. Com- 
puters usefully supplement human skills, but they cannot surmount 
altogether human frailties. Even considerations of privacy cannot sensi- 
bly require that data systems be perfectly free of error, but they do 
demand that reasonable steps be taken to reduce and identify inaccura- 
cies. 

Steps to achieve complete data accuracy are not possible during the 
brief demonstration period, but the committee strongly urges the adop- 
tion of a careful and permanent program of data verification for any 
future system. 

The committee's work already contains a framework for such a pro- 
gram. The Code of Ethics provides that the accuracy and completeness 
of the Project SEARCH data should be matters of great concern for all 

Earticipants. Regular auditing is required. These requirements might 
e satisfied by any number of administrative and legal arrangements. 

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223 

The committee suggests that an adequate program of data verification 
ought to possess the following characteristics. 

First, any such program should require participating agencies of re- 
cord to conduct systematic audits of their files, in a fashion calculated 
to insure that those files have been regularly and accurately updated. 
Periodic programs of employee re-education should also be required, 
such that every record custodian and clerk is fully conscious of the 
urgency of faithful performance. Appropriate sanctions, as described 
later in this chapter should be available for those whose performance 
proves to be inadequate. 

Second, where errors or points of incompleteness are detected, the 
agency of record should be immediately obliged to notify the central 
index (if the change involves data stored in the index) and any other 
participating agencies to which the inaccurate or incomplete records 
nave previously been transmitted. 

III. Storage of System Data 

There are three sets of problems that warrant attention in this regard: 

1. Problems involving the security of the data system. 

2. Problems of purging and time limitations. 

3. The classification of data maintained in storage. 
We will examine each of these in turn. 

System Security 

Technical questions of computer, physical, and personnel security 
are examined in detail in Chapter 4, which identifies the principal 
system security issues and describes the various methods now available 
to reduce those hazards. It is enough for present purposes to emphasize 
that an effective system security program is an indispensable compo- 
nent of any wider effort to protect the privacy interests of the data's 
subjects. The two programs serve complementary values and employ 
interrelated methods. 

• The security program is focused inward on the integrity of the data 
system and the effective performance of its duties. 

• The privacy program looks outward to the interests of those about 
whom data are collected. 

An effective security program is thus a necessary but not sufficient 
condition of an adequate program for the protection of individual 
privacy. 

Data Purging 

Much more complex issues are presented by proposals to purge the 
data system's files at regular intervals. A variety of purposes may be 
thought to justify purging provisions, and it is well to examine them 
separately. 

The first such purpose is simply to eliminate information that is 
found to be inaccurate or at least unverifiable. No objection can be made 
to such a program, although many might quarrel about its timing and 
application, and it should be an essential ingredient of any future sys- 
tem. 



20 



224 

The second possible purpose is to eliminate information that, because 
of its age, is thought to be an unreliable guide to the subject's present 
attitudes or behavior. This may certainly present very controversial 
matters of judgment, but these again are issues that are only indirectly 
pertinent to the questions now before us. 

The third possible purpose goes to the heart of the privacy argument. 
It is that society ought to encourage the rehabilitation of offenders by 
ignoring, and permitting them to ignore, relatively ancient wrongdo- 
ing. The forcefulness of this argument should not be underestimated. 
An important part of the opposition to large-scale information systems 
is the fear that individuals would no longer be permitted to outlive their 
mistakes, that isolated or immature errors would follow an offender 
through a lifetime. If this is true, an information system could run 
counter to much that has been claimed about this country since its 
beginnings. 

These claims have often been exaggerated, yet many youthful offend- 
ers may have been permanently disabled by society's memories of their 
errors. The claim still symbolizes a recognizable national goal. Like 
most such goals, it is widely believed, even if it is not widely followed. 
Designers of criminal justice information systems, therefore, should be 
prepared to take reasonable steps to accommodate their systems to this 
goal. 

The Project SEARCH demonstration does not include any provisions 
for the purging of older data, but the committee recommends, and the 
Operating Manual provides, that such arrangements should be an inte- 
gral part of any future system. 

The Operating Manual, developed for the demonstration, provides 
that records will be removed from the Project SEARCH central index 
when the agency of record indicates either (1) that the offender is not 
under correctional supervision and that no additions have been made to 
the offender's criminal history for a period of time beyond which the 
likelihood of recidivism is remote, or (2) that a purging of every entry 
on the history has been ordered by a competent court or executive 
authority. 

These requirements are supplemented by provisions in the Code of 
Ethics, Article II, Section 2, which endorse the principle of purging, 
particularly in cases of first offenders. The committee strongly urges 
each participating agency in any future system to study closely and 
sympathetically more comprehensive purging rules. 

Connected issues are presented by statutes in several states that pro- 
vide for the erasure of police and court records following acquittal, 
dismissal or pardon. These statutes are not without ambiguities, but it 
at least seems clear that they are intended to exclude such records from 
any consideration whatever, except in subsequent criminal justice deci- 
sions. As desirable and farsighted as these statutes may appear, they still 
must be expected to present important difficulties. Materials thought to 
be useful in one jurisdiction will, as records circulate through the sys- 
tem, regularly be sent to states in which they may be entirely imper- 
missible. 

No fully satisfactory solution is possible so long as state laws continue 
to differ, but the committee believes that the best answer at present is 
to ask each participating agency to follow the law or practice or any state 

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of entry which has adopted purging rules. 

If, in other words, the law of the state of entry provides for purging, 
the data remain subject to withdrawal throughout their circulation. 

It must, however, be understood that these rules are necessarily appli- 
cable only to data transmitted through Project SEARCH and any future 
system; any wider application of the purging principle, so as to reach 
intrastate data or interstate data obtained through the Federal Bureau 
of Investigation or other sources, is a matter for the judgment of the 
several state legislatures. 

Data Classification 

Although the demonstration system will include only public record 
information, as has already been explained, there still is a need to pro- 
tect sensitive data and system components. 

One of the methods being considered to provide security and privacy 
protection in Project SEARCH is a form of sensitivity classification. 

It has been proposed that a classification index might be developed 
(similar to the one designed for the New York State Identification and 
Intelligence System [NiSIIS]). This classification system establishes a 
quantitative method for defining the degree of sensitivity and, there- 
fore, protection that should be given various classes of information. 

The mere fact that Project SEARCH deals exclusively with public 
record data does not eliminate the need for attention to security and 
privacy protection, since the data itself becomes fused with system 
characteristics and cannot be evaluated as to sensitivity as something 
separate and apart from the system itself. 

Thus, the least sensitive data in the substantive sense may become 
highly sensitive by virtue of the system procedures enveloping it. It is 
not alone the information that is in the data base that determines sen- 
sitivity. Amount and quality of content, where the data is located, who 
has access, how it is stored, speed and format of retrieval, how and to 
whom it is disseminated, etc., all are relevant and impact the sensitivity 
of a system, while the individual capsules of data as such do not in 
themselves change their character as particular unit items of public 
record information. 

Arguments have been advanced that a statewide data bank of criminal 
offender records is inherently more sensitive than a local file and that 
a computerization of the statewide file increases the sensitivity. Carry- 
ing such arguments to their logical extreme, a nationwide file, comput- 
erized or otherwise, would be more sensitive than a statewide file and 
a name file would be more sensitive than a fingerprint file. While these 
questions are subject to debate, if we assume the accuracy of this prem- 
ise, the security problems increase with the sensitivity. 

As an information file progresses from a small, uncoordinated manual 
file maintained on a local basis through extensive, real-time, on-line 
nationwide computerized file of the same material, the very possibility 
for more rapid access and greater correlative activities leads to the 
probability that a constantly increasing security and privacy protection 
must also be provided even though the basic unit of information has 
remained constant. Thus, we must evaluate the data in terms of classifi- 
cation, not necessarily from inherent sensitivity, but rather from a 
standpoint of available combinations, as they exist in the system. 

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226 

A minimal classification system would determine the security pattern 
of processing, storage and transmission, the individuals to whom the 
data may be disseminated, the manner in which the data must be pro- 
tected by the recipient thereof and procedures for declassification and- 
/or destruction. Such a classification system should be applicable to all 
data in the system. An even more comprehensive classification system 
may be desirable for any future system. This classification system might 
extend to the data, the various parts of the physical system that pro- 
cesses or stores the data, and all the documentation describing system 
components and functions. System access and design criteria should 
also be included in the sensitivity classification. 

IV. System Access 

Perhaps the most difficult problem, from the standpoint of system 
design, is that of identifying and controlling proper access to system 
data. This section addresses the two major categories of access — that of 
qualified users and that of the offenders whose records are maintained 
in the file. 

Qualified Users 

It is important at the outset to emphasize that Project SEARCH data 
should be used exclusively for the service of the criminal justice com- 
munity. Project SEARCH represents one of many efforts to employ 
modern technology to reduce or prevent crime and to help to enforce 
the criminal law. It was not, and is not now, designed either as a general 
source of data for government or as a segment of any comprehensive 
governmental data system. Nonetheless, it must be candidly acknowl- 
edged that any such exclusivity of purpose raises many difficult issues 
of Taw and policy. A wide variety of demands for Project SEARCH data 
can be anticipated from outside the immediate criminal justice com- 
munity. 

For reasons, both good and bad, legislators and other state and local 
officials have increasingly required a criminal records check as a 
prerequisite for various licenses, occupations, and professions. In many 
states, applicants for civil service employment, private detectives, taxi 
drivers, boxing, wrestling and racing personnel, pistol permit appli- 
cants, liquor distributors and licensees, applicants for admission to the 
bar, and many others must have criminal records checks. State and local 
criminal justice agencies are often required by law to conduct or at least 
to permit these checks. In addition, the military services, the Federal 
Bureau of Investigation, and other federal agencies very frequently 
request access to local criminal records, sometimes for purposes with 
little direct connection to the criminal justice process. 

The comprehensive system of governmental and industrial security 
clearances depends heavily upon local records. Criminal justice agen- 
cies, like the schools, the military services, and the credit bureaus, have 
become depositories of data upon which an impressive variety of agen- 
cies, public and private, seek to draw. It must be expected that such 
requests would markedly increase if a future system, with all its attend- 
ant conveniences, were established. 

The committee believes that all such collateral uses of system data 
should, so far as reasonably possible, be prohibited. It fears that the 

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227 

widespread use of such data for purposes unconnected with criminal 
justice might suggest, and indeed perhaps facilitate, the existence of a 
comprehensive data system that might irrevocably prejudice the con- 
cept in the eyes of the general public. Further, any such usage would 
stimulate very substantial pressures to collect and disseminate cate- 
gories of data irrelevant for the criminal justice process. The ultimate 
consequence might easily be the creation of a very different and argua- 
bly more hazardous information system. Nonetheless, the committee 
recognizes that it may well be legally or administratively difficult for 
some participating agencies to avoid altogether such requests. Commit- 
tee recommendations are designed to take reasonable account of these 
constraints. 

The first and most important of the committee's recommendations is 
that direct terminal access to such a system should be restricted to 
public agencies which have as their principal function the reduction or 
prevention of crime or the enforcement or the criminal law. Questions 
of secondary access to data transmitted through such a system are 
treated later in this section. It will be obvious that difficult questions 
of definition abound in this area, and that no fully satisfactory solutions 
can reasonably be expected in this preliminary report. 

The array of potential recipients of Project SEARCH information is 
vast, and each of the potential users might obtain the data in a variety 
of ways. Potential recipients are both governmental and nongovern- 
mental, as well as persons and agencies that are of the mixed public- 
private variety. It has been determined that Project SEARCH data 
would be disseminated in the governmental sector only. However, in 
the governmental sector itself, we have departments, agencies, commis- 
sions, offices, boards, and other units of government, so the question 
arises whether it is appropriate to disseminate to a single person, a 
group of persons, or a unit within a larger unit, agency, department, etc. 
It is entirely possible to have a law enforcement unit, group, or even a 
single person positively engaged in governmental law enforcement but 
only as part or a larger organization which is totally unrelated to crimi- 
nal justice. The most obvious example of this situation is the variety of 
law enforcement units and criminal justice personnel in the U. S. Treas- 
ury Department. In addition, many state conservation departments 
maintain their own police forces, and law enforcement officials turn up 
in some of the strangest places at the local level as well. 

Some idea of the difficulty encountered in defining a criminal justice 
officer who might require access to Project SEARCH data can be illus- 
trated by examining the various legal definitions of a peace officer in 
typical state codes of criminal procedure. 

Thus, we find it difficult to define law enforcement officers, law 
enforcement groups, and organizational units of law enforcement. This 
kind of confusion is compounded when we broaden our perspectives 
and attempt to define governmental, individual, group, and organiza- 
tional units engaged in the administration of criminal justice. Neverthe- 
less, for SEARCH purposes, it was determined that information 
dissemination criteria would include as recipients only the governmen- 
tal criminal justice community. The difficulty in arriving at a definition 
has been encountered by others. For example, the NCIC Advisory 
Policy Board did not define the term "law enforcement agency" so the 
difference between "governmental criminal justice personnel, agencies, 

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228 

and/or units thereof as defined in this report and "law enforcement 
agencies" as understood by the Advisory Policy Board may not be as 
distant as appears at first glance. These questions of definition will 
undoubtedly prove to be a matter of continuing concern for the partici- 
pants in any future system. However, the following listings should 
provide adequate initial guidance. 

Under the general standard described above, the following classes of 
public agencies may be permitted direct terminal access to Project 
SEARCH and any future system: 

1. Police forces and departments at all governmental levels that are 
responsible for enforcement of general criminal laws. This 
should be understood to include highway patrols and similar 
agencies. 

2. Prosecutorial agencies and departments at all governmental lev- 
els. 

3. Courts at all governmental levels with a criminal or equivalent 
jurisdiction. 

4. Correction departments at all governmental levels, including 
corrective institutions and probation departments. 

5. Parole commissions and agencies at all governmental levels. 

6. Agencies at all governmental levels which have as a principal 
function the collection and provision of criminal justice infor- 
mation. 

The following classes of agencies and individuals would be among 
those excluded ironx direct terminal access to Project SEARCH and any 
future system: 

1. Noncriminal justice agencies with licensing authorities at all 
levels of government. 

2. Noncriminal justice agencies that are responsible for the en- 
forcement of civil laws at all governmental levels. 

3. Noncriminal justice agencies responsible for personnel recruit- 
ing or screening at all governmental levels. 

4. Public social welfare and service agencies at all governmental 
levels. 

5. Military units and agencies, including military police forces. 

6. Courts at all governmental levels without a criminal or equiva- 
lent jurisdiction. 

7. Private individuals and agencies involved in criminal proceed- 
ings, including defense attorneys and legal aid societies. 

8. Legislators and representatives of legislatures, legislative com- 
mittees and councils at all levels of government. 

9. Representatives of the communications media. 

10. Private individuals and agencies in investigatory occupations, 
including, for example, private investigators, credit bureaus, 
and industrial security agencies. 

11. All other private agencies and the general public. 

The committee recommends that any definitional questions not clearly 
answered by these listings or by the general standard described above 
should be presented for resolution to representatives of all the par- 
ticipating states. 

Obviously, these rules will exclude from direct access to Project 
SEARCH and any future system the principal agencies that might be 



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229 

expected to submit data requests unconnected with the criminal justice 
process. Nonetheless, a wide variety of secondary restrictions, involving 
agencies both with and without direct access to the data system, are 
needed to insure appropriate limitations upon access to the system and 
to its data. 

First are the restrictions upon agencies that may properly be permit- 
ted direct terminal access to tne system. It should be understood that the 
above listing is not intended as an authorization for every such agency 
to establish a direct point of access. 

The committee urges each participating state to build its data system 
around a central computer system, through which each inquiry must 
pass for screening and verification. This central computer system 
should have as its special responsibility the monitoring of the usage of 
SEARCH within the state, and should routinely seek to verify both the 
identity of the requesting party and, with non-criminal justice agencies, 
whether or not the requesting party is authorized by law to obtain 
criminal history records for compliance with its duties. Severe penalties 
should attach to improper or unauthorized usage. Finally, participating 
agencies should be instructed that their rights of direct access encom- 
pass only requests reasonably connected with their criminal justice 
responsibilities. 

It must be recognized that there are strong pressures to combine and 
consolidate all state and local data processing into major integrated 
systems. There are very persuasive and compelling arguments in favor 
of such integration of data, since, it is argued, the same data elements 
may be of value to a number of different types of agencies, including 
law enforcement and criminal justice agencies within a given jurisdic- 
tion. 

However, the Security and Privacy Committee believes that the 
SEARCH state data bank should be housed in an existing criminal 
justice agency capable of properly managing the system within the 
defined guidelines or in a computer under the operational control of an 
agency specially created for such purpose and, in either case, independ- 
ent of any noncriminal justice agency or data file. It has been agreed that 
no greater number of terminals should be utilized in any state than the 
state itself is able and willing to vouch for in terms of a level of security 
and privacy equivalent to that maintained at the state's Project 
SEARCH computer center. 

In accordance with decisions of the Project Group, the telecommuni- 
cations network filters through the central state data bank. Therefore, 
each state should be able to maintain control of traffic over the Project 
SEARCH system network. 

We have determined that only governmental criminal justice person- 
nel shall have direct access to the Project SEARCH system. For pur- 
poses of demonstration, persons or agencies not classifiable as 
governmental criminal justice agencies may have access to terminals, 
but would receive mocked-up data suitable only for illustrating the 
mechanics of the Project SEARCH operation. 

Complex issues may be presented by requests for data from agencies 
that are denied direct access to the system. The appropriate response to 
such requests is in principle clear. No use of the system or of data 
received through the system should be permitted for purposes uncon- 

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230 

nected with the criminal justice process. Any requests to employ the 
data for records checks for liquor or taxi licenses, or similar purposes, 
should normally be declined. Nonetheless, the committee fully recog- 
nizes that this principle of exclusivity may readily create severe difficul- 
ties for many participating agencies. Public agencies, of course, do not 
ordinarily segregate their files according to the sources of their data, and 
important clerical and administrative problems might arise from any 
obligation to do so. Further, criminal justice agencies are in many states 
required by law to conduct or at least to permit such records checks. 
The committee, therefore, recommends that participating agencies 
should act in accord with the following principles except where state 
statutes otherwise require: 

• Requests from outside the criminal justice community to examine 
data previously obtained through the system should be honored 
only if the receiving agency is authorized by local law or valid 
executive directives to do so. Competent legal counsel should be 
obtained to determine the limitations of the agency's obligations. 

• No inquiries through such a system should be permitted for any 
purpose unconnected with the criminal justice process. The state's 
central computer should make every effort to insure that unauthor- 
ized inquiries are detected and eliminated. 

• Data previously received through the system should be marked and 
readily identifiable as such. So far as it is administratively feasible, 
these data should not be intermingled with the receiving agency's 
other files and documents. 

Problems of access are also raised by the statutes under which inter- 
ested private citizens may inspect and copy wide categories of public 
documents, sometimes including criminal justice records. The effect of 
these rights is to offer access to such records to representatives of the 
communications media, private investigators, credit bureaus, and all 
other interested citizens. Whatever the wider justifications for the doc- 
trine of public records, the committee has concluded that no such rights 
of access should be permitted to data obtained through Project 
SEARCH or any future system. 

It, therefore, offers two additional recommendations: 

• It believes that the staff of any future system should undertake as 
one of its first responsibilities a thorough study of the various state 
public record doctrines. This study should encompass judicial and 
administrative decisions as well as statutes. It should indicate in 
which states and with what seriousness the doctrines of public 
records create difficulties as to system data. 

• The committee recommends that participating agencies should be- 
gin prompt efforts to obtain appropriate exemptions from these 
doctrines for future system data. If necessary, statutory relief 
should be sought. Participants and representatives should be pre- 
pared, so far as it is reasonably possible, to assist these efforts. The 
committee does not assert that these recommendations will elimi- 
nate altogether these difficulties; it suggests simply that they repre- 
sent a realistic and ultimately effective plan or action. 

Offender Rights of Access 

The second category of access rules involves the possibility of a citi- 



27 



231 

zen's right to inspect and challenge the contents of his records. No such 

C revisions were realistically possible in the brief demonstration period, 
ut the committee strongly believes that they should form an integral 
part of any future system. The reasons are several. 

First, an important cause of fear and distrust of computerized data 
systems has been the feelings of powerlessness they provoke in many 
citizens. The computer has come to symbolize the unresponsiveness and 
insensitivity of modern life. Whatever may be thought of these reac- 
tions, it is at least clear that genuine rights of access and challenge u'ould 
do much to disarm this hostility. 

Second, such rights promise to be the most viable of all the possible 
methods to guarantee the accuracy of data systems. Unlike more com- 
plex internal mechanisms, they are triggered by the most powerful and 
consistent of motives, individual self-interest. 

Finally, it should now be plain that if any future system is to win 
public acceptance, it must offer persuasive evidence that it is quite 
seriously concerned with the rights and interests of those whose lives 
it will record. The committee can imagine no more effective evidence 
than authentic rights of access and challenge. 

It should be understood that data custodians may take all reasonable 
steps, including fingerprinting, to assure that access to records under 
their control is restricted to properly authorized persons. 

If the citizen believes that his records are inaccurate or misleadingly 
incomplete, he should be permitted reasonable opportunities to chal- 
lenge them. These opportunities might be variously structured, reme- 
dies, if they exist, should be used, state statutes could be enacted, or a 
small number of disinterested private citizens could be asked to serve 
as members of panels that would conduct informal hearings, take evi- 
dence, listen to argument, and formulate specific recommendations. 

It will be clear that these procedural guidelines would have to be more 
clearly and completely defined if the scope of a future system is signifi- 
cantly expanded. A much more complex system of limitations and safe- 
guards would almost certainly be needed. As we emphasized earlier, the 
committee strongly recommends against any such changes in the char- 
acter of the information system. If, nonetheless, this occurs, an appro- 
priate system of data categories should be adopted, with varying rights 
of notice, access, and challenge. 

V. Uses of System Data 

There are a set of precautions and conditions which are important 
guidelines to the actual application of data from the system. These 
guidelines relate to the direct application of data in criminal justice 
processes, to the potential secondary uses, and to the use of the data for 
research. 

Primary Data Uses 

The general types of situations in which criminal history data can be 
useful were briefly discussed in Chapter 1. Rather than attempt to 
identify all of the legitimate applications, the concept of primary data 
uses refers to those situations in which the knowledge of a suspect or 
offender prior record is of material value to the conduct of the criminal 

28 



232 

justice processes. Within this broad definition, however, the nature of 
the SEARCH system imposes a series of important precautions to be 
taken in the use of the data. It is acknowledged that Project SEARCH 
and any future system, like all similar data systems, include risks as well 
as advantages. The advantages should be obvious to any citizen genu- 
inely troubled by the failures and delays of the criminal justice system. 
The risks involve increased hazards of mistaken identity as a conse- 
quence of the system's increased speed of operation. Although the statis- 
tical likelihood of error in any given situation will always remain quite 
small, the committee believes strongly that these risks should cause 
serious and permanent concern among participating agencies. 

It must be acknowledged that Project SEARCH, as originally con- 
ceived, was basically a "name search" system. The addition of an accu- 
rate FBI number and other identifiers to the name, of course, makes it 
possible to be more certain of the identity of the individual. The use of 
facsimile transmission of fingerprints, as verification of identity, like- 
wise makes positive identification possible. There are, therefore, trade- 
offs between speed and certainty of identification. At different intervals 
in the processing of the offender through the criminal justice agencies 
that society has created to deal with criminal behavior, there are differ- 
ent requirements for certainty of identification and these are often 
related to the exigencies of response time. 

Prearrest 

Through its central index. Project SEARCH seeks to provide im- 
mediate basic data concerning the individuals with whom the police 
must deal at the street level, but almost always on a "name search" basis 
only. There is no opportunity in on-the-street situations to verify the 
identity of the suspect in any rigorous fashion. The privacy precaution 
to be exercised at this point is to ensure that actions are taken in re- 
sponse to factual data, and not merely in light of partially speculative 
prior record information. 

Many police investigations and most prosecuting attorney and grand 
jury investigations, however, do not require instantaneous response. If 
the FBI number is known because of prior certain knowledge concern- 
ing the suspect; or, if it is possible under the law of the particular state 
involved to take fingerprints prior to formal arrest, a positive identifica- 
tion may be made and fast responses of summary data obtained from the 
central index. Shortly thereafter, a more complete record may be re- 
quested where desired from the state of record. Both are made possible 
through the rapid telecommunications and computer interface proce- 
dures of Project SEARCH. 

It is significant to note that in the first case, records are obtained on 
the basis of identification other than — and less positive than — finger- 
prints or their equivalent, or an accurate and certain FBI number 
(which most often can be obtained only by fingerprinting). The sen- 
sitivity of this phase of Project SEARCH operations is critical. It is here 
that miscarriages of justice could occur because of mistaken identity. 

Arrest, Booking, and Arraignment 

Arrests are frequently made on the basis of leads obtained through 
tentative identification; however, it is critical that a prima facie case be 

29 



233 

established on facts other than the data obtained from a Project 
SEARCH response. If the statutory grade of the offense is greater 
because of the fact of a previous conviction, it is most risky to depend 
upon a name and personal description search or to take any immediate 
action in reliance thereon. 

With the availability of facsimile and other appropriate means to 
obtain a positive identification, it should not be necessary to book and 
arraign and set bail for an individual in reliance upon a criminal history 
record which is obtained on the basis of a tentative identification. This 
is not to say that rapid processing is not essential. 

Having a charge or bail set too low or too high and the arrestee 
released or detained before his full circumstances are known, is dysfunc- 
tional. On the other hand, unduly holding the arrestee, either by re- 
questing adiournment of the case or by filmg a technical charge (such 
as vagrancy) as an excuse for holding him, compromises an individual's 
civil liberties. Clearly, these alternatives are a disservice both to the 
arrestee and his rights and to the local taxpayers who must pay the 
added costs of criminal justice. 

Sentencing, Probation, Correction, and Parole 

There is no satisfactory reason why any individual should be sen- 
tenced, or be dealt with by rehabilitative agencies, on the basis of a 
criminal history record obtained through Project SEARCH, unless 
positive identification of the person has been obtained. Ample time is 
generally available, in these parts of the process, to obtain positive 
identification, even using the mail for transmission. 

It should be quite clear that positive identification is an essential goal 
in the general application of bEARCH data. 

The committee's first and principal recommendation is, therefore, 
that participants in Project SEARCH and any future system actively 
continue to devise more effective methods to minimize every possibility 
of error. These efforts should be given the highest priority by the staff 
of any future system. In addition, the following preliminary measures 
should be implemented by every participatmg agency in Project 
SEARCH. 

First, a vigorous educational program should be instituted for all 
police officers, prosecutors, and others who might be expected to em- 
ploy Project SEARCH data. The program shoula include frank apprais- 
als of the likelihood and consequences of error. It should remind every 
officer that prompt and thorough verification must be obtained of every 
Project SEARCH identification, and that significant criminal justice 
decisions should be based on unverified data only in the most urgent 
circumstances. Refresher programs should be repeated at regular inter- 
vals. 

Second, as indicated earlier, all Project SEARCH data should be 
marked and identifiable as such. These markings, or a supplementary 
document that is securely fastened to each Project SEARCH file, should 
offer prominent warnings that positive verification should be obtained 
as quickly as reasonably possible and that any reliance upon unverified 
data is extremely hazardxjus. 

Third, the reports and other documentation routinely completed by 
police officers should include explicit inquiries about the use made of 

30 



234 

Project SEARCH data and the methods employed to verify Project 
SEARCH identifications. Senior police officers should monitor these 
and other reports to insure proper usage. 

Fourth, police officers and cadets should be repeatedly warned that 
careless use of Project SEARCH data represents professional miscon- 
duct that warrants severe disciplinary measures. Officers who are found 
to have disregarded these warnings should be thoroughly counseled 
and, where appropriate, disciplined. 

Fifth, prosecutorial authorities should be instructed to make explicit 
inquiries about the usage and verification of Project SEARCH data in 
any case brought to them for further proceedings. The absence of posi- 
tive verification for any identification should be sufficient cause for 
reconsideration of the case. 

Sixth, any reports or documents provided to defense counsel which 
include Project SEARCH data should routinely describe both the haz- 
ards of careless use of the data and the methods actually employed to 
verify the identification in question. 

Seventh, commissioners, magistrates and other judicial or quasi-judi- 
cial officials should be told in detail the possible hazards of Project 
SEARCH identifications, and should be encouraged to inquire in the 
course of their duties whether such data have been used and, if so, 
whether verification procedures have been completed. They should be 
asked to assume that any pretrial proceeding instituted on the basis of 
an unverified identification is fundamentally deficient. Police officers 
and prosecutors should be instructed to volunteer this information rou- 
tinely, as part of their wider commitment to the integrity of the crimi- 
nal justice process. 

These precautions are not intended to invalidate any tentative iden- 
tification information or responses for "on-the-scene" investigation and 
imminent arrest situations. Many innocent people may be immediately 
and intelligently cleared of suspicion, just as many guilty people may 
be held rather than summarily released, because of information derived 
from data obtained through the immediate nationwide record response 
of Project SEARCH. 

At the same time, every effort should be made to reduce, through the 
application of relevant advanced technology, those circumstances in 
which Project SEARCH can provide only tentative identification to law 
enforcement officers and criminal justice agencies. 

Secondary Uses of Data 

The severity of the hazards created by any data system depends in 
large measure upon the purposes for which, and agencies by which, the 
system's information is employed. Constraints upon the system's collec- 
tion and storage of data, no matter how rigorous, can never replace 
altogether a system of effective restrictions upon the uses to which those 
data are put. At the same time, such restrictions are often extraor- 
dinarily difficult to enforce. In this situation, for example, it must be 
anticipated that the data will frequently circulate widely through and 
outside the receiving agency. Police officers, prosecutors, detention 
officials, parole boards, clerical assistants, judicial administrators, pub- 
lic defenders, and many others may all be expected to demand copies 
of or access to the data. Licensing agencies, credit bureaus, the military 

31 



235 

services, the communications media, private investigators, and others 
will make similar requests from outside the criminal justice community. 
Each of these groups will be likely to have informal constituencies with 
which it habitually exchanges information. Most of these secondary 
recipients will be only peripherally connected with the criminal justice 
process. The consequence is likely to be a network of very informal lines 
of communication, along which system's data will frequently flow. It 
must be acknowledged that no system of restrictions, however strin- 
gent, is likely to prevent all leakages. They are simply a fact of organiza- 
tional life. Nonetheless, the committee believes that important steps 
may be taken that at least will reduce their frequency and seriousness 
to a minimum. 

First, participating agencies should be instructed that no dissemina- 
tion of system's data either within or outside the receiving agency is 
permissible except for purposes directly connected with the criminal 
justice process. A continuing program of employee training should be 
undertaken, in which the special constraints that are applicable to sys- 
tem's data are emphasized. 

Second, as indicated earlier in this chapter, the committee recom- 
mends that data received through such a system be marked and readily 
identifiable as such. So far as administratively feasible, these data should 
not be intermingled with the receiving agency's ordinary files and docu- 
ments. 

Third, criminal justice agencies that obtain data from a receiving 
agency should be fully familiar with the system and with the special 
constraints that surround its data. 

Fourth, receiving agencies should maintain, for a reasonable time, 
complete registers of the individuals and agencies to which the system's 
data are released. These registers should indicate the information 
released, the individual to whom it was released, and the date. It should 
be clearly understood that no further dissemination is permissible with- 
out specific, prior, and written consent from the receiving agency. If 
these restrictions are intentionally or repeatedly violated, the offending 
agency should be immediately denied further access to the system's 
data. The committee believes that these measures, together with those 
described in the subsection concerning access to the system, offer a 
realistic and constructive approach to these problems. 

Research Uses 

Another troublesome aspect of indirect access to the Project 
SEARCH system is in the area of research. Here we deal with the very 
legitimate interests of people who most often do not meet the criteria 
for direct access, yet granting indirect access to them would seem to be 
socially desirable. 

When research into trends within the criminal justice field are con- 
ducted by Project SEARCH participants' own analysts, no special 
procedures are needed, other than to ensure that employees performing 
in this area abide by the privacy safeguards and rules. However, there 
has been strong interest, for the benefit of the criminal justice system, 
in making as much of this data as possible available to qualified social 
and behavioral science researchers. 

If identifying numbers or names are needed in order to associate 

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236 

information across time or conduct special studies, the researchers 
should indicate such needs and the actual search and link functions 
should be carried out by Project SEARCH personnel assigned to the 
project. The important point is that Project SEARCH can provide a 
means for mounting experimental programs of research within the 
purview of security and privacy constraints. There are political scien- 
tists, sociologists, lawyers, economists, and other specialists whose work 
in the criminal justice field could have a major impact in increasing our 
knowledge of both the causes of crime and effect of different commit- 
ments, and on probation policies and similar matters. Such programs of 
research may ultimately prove the most useful of all the consequences 
of such a system. Nonetheless, the committee strongly believes that all 
participating agencies should be obliged to take all reasonable steps to 
guarantee the privacy interests of the subjects of the records. It is con- 
vinced that these two competing interests may be satisfactorily accom- 
modated by implementation of the following recommendations. 

First, each participating agency and every proposed program of re- 
search should explicitly acknowledge a fundamental commitment to 
respect privacy interests in the conduct of research. 

Second, no program of research utilizing individual records should be 
initiated unless an advisory council, or other appropriate representa- 
tives of the system, has fully investigated the proposed program, has 
been satisfied as to the professional qualifications of those involved, has 
been convinced that the proposal is justified by the public interest, and 
has approved the procedures it includes for the protection of individual 
privacy. Separate and explicit findings should be made as to each of 
these questions by the reviewing authorities. 

Third, the identification of individual subjects should be divorced as 
fully and as effectually as possible from the data. Anonymity of the 
subjects should be actively sought in the design of the research project, 
and should be regarded as a fundamental characteristic of good research. 
Any research project not involving anonymity of the subjects should be 
examined with the greatest care. It should be assumed that any such 
project requires stringent supplementary protective measures, possibly 
including written prior consent from each subject whose file is to be 
opened. 

Fourth, the research data should be shielded by a security system that, 
so far as reasonably possible, is fully comparable to that which or- 
dinarily safeguards the system's data. 

Fifth, any code or key that identifies individual subjects with any 
portion of the research data should be given special protection and 
should be destroyed as soon as reasonably possible. 

Sixth, data obtained for one research purpose should not subse- 
quently be used for any other research purpose without the prior, 
specific, and written consent of authorized representatives of the sys- 
tem. Such consent should be given only after reconsideration of all of 
the issues described above. 

Seventh, each of these requirements, together with any supplemen- 
tary requirements that may appear'to be necessary in individual situa- 
tions, should be included in any research contract or agreement. 
Appropriate nondisclosure forms should be required, and the system 



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237 

should retain rights to monitor and, if necessary, terminate any pro- 
gram of research. 

Finally, it must be understood by the relevant system representatives 
that these requirements should be extended or supplemented as needed 
to guarantee meaningful protection for the subjects' privacy interest. 
They are, in other words, intended to serve as an initial set of operating 
principles, and not as a final or comprehensive solution to the intricate 
problems of privacy and research. 

VI. Organizational Structure, Controls, and Sanctions 

It is important now to examine several more general questions of 
administrative policy. These may be conveniently divided into three 
groupings: 

1. Questions of the proper legal and administrative relationships in 
the system, its participating agencies, and other public bodies. 

2. Questions involving internal methods of control. 

3. Questions involving the external remedies that should be pro- 
vided those harmed by the system's activities. 

Legal and Administrative Policies 

Project SEARCH consists essentially of two parts: a central index, 
located during the demonstration in Michigan, and the various par- 
ticipating state agencies, each of which will prepare files for dissemina- 
tion through the system and operate data terminals for the transmission 
and reception of data. 

Both parts of Project SEARCH raise difficult questions of law and 
policy, but the committee believes that the s\stem may best be struc- 
tured along the following lines. 

For reasons described earlier in this chapter, there should be a central 
computer within each state through which all data inquiries should 
necessarily pass. This central computer should be empowered to screen 
all data inquiries and to exclude those that appear inconsistent u itii the 
system's requirements. To facilitate this screening, every inquiry from 
a remote terminal should include prescribed minimal information con- 
cerning the requesting agency and the purposes of the inquiry. 

This screening should be supplemented by, and cross-referenced 
against, a continuing program to monitor and supervise usage of the 
Project SEARCH system and its data within the state. Periodic usage 
reports should be required for each of the remote terminals. 

Each state's Project SEARCH center's supervisory powers should 
include control over the position and number of remote terminals, as 
well as the character, number and sources of the data inquiries. 

The committee believes that these obligations would be most effec- 
tively discharged if the central computer in each state were placed 
under the authority of a specific state agency. The agency should be 
adequately staffed with appropriately qualified professional personnel. 
It should be given, preferably by statute, ample authority to monitor 
and control usage of the system and its data within the state. This should 
include power to license remote terminals, to screen data inquiries, to 
require periodic activity reports, and to impose sanctions, including 
expulsion, on agencies and individuals that abuse the system. 

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238 

An important organizational question relates to the actual placement 
and operation of the central index in any future system. A variety of 
devices might be employed for this purpose, each with its particular 
advantages and hazards. The index might, for example, be conducted on 
the basis of essentially informal understandings among the participat- 
ing state agencies. This might be conveniently and easily created, but 
it is likely also to produce important legal and perhaps financial difficul- 
ties. The index might alternatively be placed under the authority of an 
existing or new federal agency. This method would have the possible 
advantage of encouraging continuing federal financing for the system. 
Third, the index might be conducted under the auspices of an interstate 
compact, joined by all of the participating states. This would give for- 
mal recognition to the states' primary responsibility for enforcement of 
the criminal laws, but it might, in addition, prove an awkward and 
inflexible arrangement that ultimately discouraged federal participa- 
tion in the system. 

Still another possibility might be a public corporation, chartered by 
the federal government. The committee does not believe that it should 
now offer recommendations as to these and other possibilities. Any final 
selection must await further clarification of the terms of any future 
system, including the relative financial responsibilities of the federal 
government and the participating states. Instead, the committee recom- 
mends simply that these and all other reasonable possibilities should be 
intensively examined to determine their relative advantages in light of 
the terms of any future system. 

Internal Control 

Whatever the legal structure ultimately selected for any future sys- 
tem, the committee believes that the following devices should be care- 
fully considered for inclusion. First, there should be a permanent 
council of state representatives, supplemented by representatives of the 
relevant federal agencies and the general public. The public representa- 
tives should consist of a small number of distinguished private citizens, 
selected for their known interest in civil liberties and criminal justice. 

This governing board should be given wide powers over the system 
including authority to: 

• Monitor the activities of the participating state agencies. 

• Adopt administrative rules and regulations for the system. 

• Exercise sanctions over all agencies connected with the system. 

The council should also have authority to delegate any and all of its 
powers to an executive committee. In addition, it should be supple- 
mented by a small permanent staff, including a suitably qualified direc- 
tor, and such advisors and consultants as it finds necessary or 
appropriate. 

Among its other activities, the council should conduct periodic inves- 
tigations of the methods adopted by the participating states for the 
protection of privacy and security. It should from time to time formu- 
late its findings into administrative standards for the entire system. It 
should exercise particular control over any proposed programs of re- 
search. 

It should be clear that the committee envisions two layers of internal 
administrative controls for the system. 

35 



239 

First, the individual state agencies should be generally responsible for 
the conduct of the system within their own jurisdictions. 

Second, the national governing board and staff should monitor the 
activities of the several state agencies to insure proper cooperation and 
the full observance of national standards. 

Both levels should be empowered to conduct investigatory hearings 
in \\ hich evidence would be taken, argument heard, and findings made. 
Both levels of administrative control should be empow ered to impose 
prompt and appropriate sanctions upon any agency that has abused the 
system or its data. 

The sanctions at both levels could involve suspension or expulsion of 
agencies from the system. However, at the state level, in cases of in- 
dividual offenders, there should be a whole range of employment sanc- 
tions, including discharge. 

Further, the committee believes that administrative sanctions should 
be supplemented b\' the imposition of criminal penalties upon those 
uho willfully misuse the system or its data. These penalties ought to 
include the possibility of terms of imprisonment as well as fines. They 
might be created by federal or state statutes, or some combination of the 
two, but the committee recommends that the system should draft, and 
each participating state should immediately adopt, a uniform act for the 
protection and control of system data. This model statute should in- 
clude these criminal penalties, the civil rights of action described belov\-, 
and any exemptions that may be necessary from state licensing and 
freedom of information statutes. These last issues are discussed in ear- 
lier sections of this chapter. 

External Remedies 

It is necessary next to examine the various remedies that should be 
provided those who are injured by the system's activities. We have 
already described the rights of access, notice, and challenge \\ hich we 
would have the system guarantee to every individual. 'Fhe committee 
does not, however, believe that these rights, important as the\' certainly 
are, should be thought adequate. 

The legal history of this country consists in large measure of u arn- 
ings that administrative remedies are in themselves insufficient guaran- 
tees of individual interests. More narrowly, it should be clear that anv 
future system will win the confidence of the general public only if it 
first provides tangible evidence of genuine concern for the rights of 
those about whom it will collect information. A meaningful system of 
judicial remedies would provide such evidence. Two sets of remedies 
should be considered: First, the administrative rights of notice, access, 
challenge, and review should be made judicially enforceable by statu- 
tory authorization of a prerogative writ, on the order of mandamus and 
habeas corpus. This in itself will add nothing to the burdens or incon- 
veniences placed upon the data system by these rights. It merely pro- 
vides persuasive testimony that these rights are seriously intended and 
that they may, if necessary, be guaranteed by the courts. 

Second, statutory authorization should be given for broadened civil 
rights of action in cases in which inaccurate, incomplete, or misused 
data cause injury to the data's subjects. 

As the situation nou- stands, private citizens in most states are given 
36 



240 

civil causes of action in cases of defamation, invasions of privacy, and 
breaches of confidentiality- These rights of action are, however, often 
of little practical value because of various exceptions and limitations. 
The pressures and situations that shaped these restrictions have little 
relevance to the issues that now concern us. 

1 he committee, therefore, recommends the creation by statute of 
supplementary civil rights of action, under which individuals could 
recover actual damages suffered as a consequence of negligent or willful 
misconduct by the data system or its employees. 

These rights would run separately, but not cumulatively, against the 
system and its participating agencies. They should be included in a 
model statute drafted by the system and adopted in each of its participat- 
ing states. 

Finally, attention should be given to the various proposals that data 
systems should supplement their internal controls by the use of om- 
budsmen or independent boards of inquiry. The committee has exam- 
ined these suggestions closely, but has concluded that its 
recommendation for public representatives on the national council is in 
this situation more satisfactory. The committee anticipates that this will 
guarantee the same independence of view without the same administra- 
tive inconveniences. 

Nonetheless, the committee recommends that these additional pro- 
tective devices should periodically be reconsidered by the council and 
staff of any future system. Perhaps, these devices might later be used on 
an experimental basis in selected states. The point that warrants re- 
emphasis here is that individual privacy interests can be effectively 
protected only if they receive serious and sympathetic attention from 
every participating agency throughout the life of the system. This is, as 
we observed earlier, the committee's first and most fundamental recom- 
mendation. 



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Chapter 4 
System Security 

The pi:evious chapter has described a broad range of considerations 
relating to the design and operation of a total computerized criminal 
history system, from the viewpoint of providing guidelines protecting 
individual privacy. There are two aspects of the entire security and 
privacy question that remain to be addressed. 

First, while it is appropriate to discuss the privacy considerations 
with respect to the total operational system (hardware, software, opera- 
tors, and users), the actual implementation of many of these guidelines 
will ultimately be carried out by the agency that is chosen to operate 
each state system. These system operators will be assigned the responsi- 
bility, then, of providing the actual detailed procedures that accomplish 
the recommendations of Chapter 3. It is, therefore, appropriate to view 
the considerations of Chapter 3 in terms of how they affect actual 
system operation, and thereby provide guidance for system operators in 
preparing the necessary procedures. 

Second, there are a second set of considerations interrelated with the 
privacy issues that concern the system operators. These relate to the 
protection which must be given to the system to preclude damage or loss 
that will impair the operation of the system. Obviously, a heavy reliance 
on the system requires that it be protected from accidental or inten- 
tional damage or alteration. These concerns also imply that the system 
operators have to develop appropriate procedures. 

When the privacy issues are viewed from the perspective of the sys- 
tem operator, the resulting procedures overlap those that would be 
developed for the protection of the operating system. It is, therefore, 
useful to consider the combination of these two aspects in terms of 
system security. 

System security, then, is the ability to restrict the availability of 
specific information to authorized individuals, and the ability to physi- 
cally protect all parts of the system, including both data and the system 
that processes the data, from any form of hazard that might endanger 
its integrity or reliability. 

This chapter is organized under seven major headings representing 
statements of security/ privacy agreed to by the Project Group repre- 
senting the states participating in Project SEARCH. These policy state- 
ments represent the commitment of the participating states to system 
security as an integral part of criminal justice information system de- 
sign and operation. They are expected to remain relatively constant 
over time, and to be useful both in the conduct of the feasibility demon- 
stration being conducted under Project SEARCH and in the design and 
operation of future national criminal history information systems. 

Immediately following each major policy statement, procedures con- 
sistent with that policy are presented. These procedures are intended 
to be illustrative of the types of activities which states would undertake 
in implementing the policy statements. It is recognized that the specific 

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242 

procedures to be implemented in a given state, and the timing of im- 
plementation, will vary widely, depending on the statutory authority of 
the agency operating the criminal justice information system, state stat- 
utes regarding security and privacy, the equipment and software con- 
figuration of the system, the numbers and types of system users within 
the state, and other variables. Because of these variations, and because 
the security and privacy committee realizes that it is impractical to 
attempt to specify detailed operating procedures which can and will be 
adopted by every agency, the guidelines presented here are explicitly 
limited to illustrations. Although it may be possible in the development 
of a future system to identify mutually acceptable procedures, a much 
broader involvement of the participants will be necessary to reach 
agreements that will actually be implemented. At the present time, 
some of the procedures listed in this chapter may be inappropriate in 
some participating states, whereas procedures not discussed in this 
chapter may be very desirable or already implemented in other states. 
The important point is that participating states concur in the policy 
statements, and recognize a requirement to translate these policy state- 
ments into day-to-day performance. 

In order to be effective, procedures must be brief, unambiguous, and 
directed toward action (that is, they should require some actions, allow 
others, and forbid still others). Procedures must be available to all au- 
thorized users of the system whose actions are affected by them and they 
must be made an integral part of job training and performance evalua- 
tion. Whereas policy statements are expected to remain valid over ex- 
tended periods of time, procedures must be continually evaluated in the 
light of changes in the state of technology, system configuration, and 
external security risks. 

Policy Statement: The input, modification, cancellation, or retrieval of 
information from the system will be limited to authorized agency terminals. 

A procedure consistent with this policy would require the identifica- 
tion of individual terminals using a method not requiring operator 
intervention (e.g., terminal "hardware"). 

For systems on which terminals are shared by authorized agencies 
and unauthorized agencies, procedures to implement passwords, 
scheduling, operator identification, or off-line initiation of system ac- 
tuation (e.g., by telephone call) are consistent with this policy statement. 

For systems in which some agencies are authorized limited system 
access (e.g., inquiry only terminals) consistent procedures would define 
levels of access to the system in terms of types of information elements 
and records which can be input, modified, cancelled, or retrieved by 
each and every agency, coupled with system software provisions to 
insure that only those system transactions authorized can be undertaken 
by each participating agency. 

Procedures to insure that the telecommunications facilities of the 
system are adequately protected against eavesdropping, tapping, inser- 
tion of false messages, and so forth are within the scope of this policy 
statement. If the system is implemented on a computer system not 
entirely dedicated to criminal justice applications, procedures to protect 
or to prohibit access to the data base by unauthorized agencies during 
time-sharing, multi-programming, or other uses of the processor should 
be implemented. 

40 



243 

Policy Statement: Disclosure of information from the system through termi- 
' nab will be limited to authorized final users. 

Procedures for the training and education of terminal operators and 
user personnel within agencies fall within the scope of this policy state- 
ment. Such procedures include the mandatory posting of rules and 
statutes applicable to use of the information, establishment of a manda- 
tory training program as a condition of system participation, and re- 
fresher training in security requirements. 

Procedures to assure the prompt and active prosecution of persons 
accused of unauthorized information use, and for cancellation of system 
services to agencies which violate system security would also fall within 
the scope of this policy statement. 

Procedures to require the establishment, maintenance, and review of 
system usage logs for the identification and documentation of system 
security violations would support this policy statement. 

Procedural requirements for physical security standards at terminal 
locations regarding physical access to the terminal by staff, maintenance 
personnel, and visitors, and for the disposal of printouts and other 
system byproducts will support this limitation of information access. 

Procedures to assure the limited distribution of Operating Manuals 
and other information required for access to the system will support 
this policy. Procedures requiring dedicated communications facilities 
and lines assist in implementing this policy. 

Policy Statement: Information in the system will be protected against unau- 
thorized access in the computer center. 

Procedures to assure the secure and orderly destruction of page 
printer and paper tape output of the information system provide partial 
implementation of this policy. Similarly, procedures for the erasure of 
magnetic tapes and discs prior to transfer out of the computer center 
or reuse in portions of the center not devoted to criminal justice infor- 
mation processing are appropriate implementations of this policy. 

Procedures providing for the physical security of the computer cen- 
ter, including procedures for escorting of visitors, maintenance person- 
nel, and equipment vendor representatives will reduce the risk of 
unauthorized access. 

General software requirements for the erasure and clearance of core, 
buffers, mass storage, and peripheral equipment as an integral part of 
all programs dealing with the processing and retrieval of criminal jus- 
tice information lend credence to the policy statement. 

Procedures for the limitation of the numbers and the qualifications 
of computer center personnel authorized to have direct access to the 
information in the computerized system through the system control 
terminal, and providing for the logging of system transactions through 
the control terminal represents an important portion of the policy im- 
plementation plan. 

Policy Statement: Information in the system will be protected against unau- 
thorized alteration. 

Procedures which require the installation, checkout, and regular re- 
view of filejprotection software is an appropriate response to this policy 
statement. Care must be taken that the file protection software concept 



41 



244 

used really protects against accidental or intentional alteration of in- 
dividual files under all operating circumstances. 

Procedures assuring that the criteria for purging of individual infor- 
mation elements or records from the file are clearly and concisely stated, 
published, and made available to all authorizedi users of the system 
should be developed. A procedure requiring the logging of all record 
alteration transactions of the system and periodic revievi^ of those logs 
can be implemented. 

A procedure of special review of information purging software 
should be carried out, to determine if the user should be authorized to 
purge records without manual intervention at the computer site. 

Policy Statement: Information in the system will be protected against loss. 

Procedures for the protection of the computer facility and files 
against fire and vandalism should be instituted, to include specific re- 
quirements of site preparation and configuration to assure that strong 
countermeasures against fire and vandalism can be mobilized, and to 
minimize the probability that total loss of data will occur. 

Procedures which establish library storage of system information 
should be instituted, with special consideration for the environmental 
control to allow long-term storage of data without degradation, proper 
internal and external labeling to assure ease of retrieving information 
from the library, and proper physical protection of the library facilities 
to protect against (and detect attempts at) access by unauthorized per- 
sons. 

Procedures should be instituted to assure special protection of infor- 
mation in the system during critical periods of system configuration 
change such as file reformatting, reprogramming, changes in informa- 
tion retrieval/modification programs, etc. 

Procedures to limit the total number of persons who have "complete" 
access to the system, through implementation of privileged instruction 
sets or limitations on the capabilities of individual input/output devices 
are within the scope of this policy statement. 

A procedure for the protection of the computer center and telecom- 
munications lines against tapping, eavesdropping, and imitative decep- 
tion techniques should be instituted; the procedure should detail 
responsibility for concern about these danger areas during system de- 
sign, operation, and modification phases. 

Since information unavailable at the time of need is essentially "lost", 
the provision of facility duplexing, gradual failure modes, and other 
equipment and procedures designed to maximize system availability 
support this policy. Procedures requiring the storage of duplicate files, 
programs, and documentation separate from the computer center simi- 
larly support this policy. 

Policy Statement: Information in the system will be protected against unau- 
thorized use. 

Procedures to identify specifically those uses to which the informa- 
tion base can be put should be instituted. These procedures will include 
definitions of those uses which fall within the direct functional respon- 
sibilities of the criminal justice information system, those statutorally 
mandated, those allowed uses within the discretion of the information 
system management, and uses specifically forbidden by statute or ad- 

42 



245 

ministrative decision. Included should be both operational and research 
uses of the data, by both governmental and private agencies, as de- 
scribed in Chapter 3. 

Procedures for the editing of data before turning it over to research- 
ers, and for the training and education of those users in security should 
be explicitly stated in written procedures. 

Procedures to establish records of such secondary uses of the data, 
containing both the authorization under which the use was obtained 
and the specific information to which the user had access are within the 
scope of this policy statement. 

Procedures for the authorization of computer program preparation, 
coding, debugging, test, and use on the system including standards of 
documentation required and specific check for security adherence are 
proper partial implementations of this policy statement. 

Policy Statement: System security is a line responsibility equal in importance 
to system performance. 

An appropriate implementation of this policy statement would in- 
clude procedures to insure that appropriate consideration is given to 
security risk at the point of hiring, performance review, and promotion. 
Implementation may include required background investigations, set- 
ting of personnel standards concerning criminal history of persons with 
access to the system (possibly equivalent to police officer standards), 
probationary employment periods, and continuing activities to investi- 
gate the risk potential of system employees, vendors, maintenance per- 
sonnel, etc. In the case of computer centers not entirely under the 
management control of criminal justice agencies, these provisions may 
extend to government employees of other agencies. 

There should be procedures of periodic management audit of security 
procedures for the system, to insure that existing procedures are ade- 
quately stated, published, and adhered to. In addition, the audit should 
review all phases of security to determine the adequacy of current 
procedures to the current security risks, and to develop additional 
procedures where required. ^ 

Procedures calling for external audit of security adequacy either peri- 
odically (e.g., every four years) or on special occasions (e.g., after a major 
security violation) would support this policy statement. 



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Appendix A 
Code of Ethics 

Project SEARCH participants believe that a nationwide capability 
for quick access to offender criminal histories is essential for effective 
law enforcement and administration of criminal justice. 

It is recognized, however, that the extraordinary increase in accessi- 
bility and responsiveness associated with the use of computer-based 
information systems may increase the possibility of unauthorized dis- 
closure or misuse of the data in other than legitimate law enforcement 
and criminal justice functions. Therefore, in order to provide reason- 
able protection of individual privacy and to secure the aata maintained 
in the System, the participants in Project SEARCH pledge to observe 
the following: 

Article I. Limitations of the System 

Section l. Limited area of government. The participants should 
limit the area of concern to criminal justice as a matter of government 
function. 

Section 2. Limited category of users. The participants should limit 
access to the System to criminal justice agencies who would assume 
responsibility for the legitimate criminal justice use of System data and 
provide penalties for improper disclosure. Rules governing access 
should be definite and subject to public scrutiny. 

Section 3. Limited functions. 

A. The participants should limit the role of the Central Index to an 
information service only. 

B. The participants should limit the System, at the national level, to 
an index or directory role rather than a registry function. 

Section 4. Limited information. 

A. The participants should limit System records to certain subjects 
— those for whom arrest fingerprints have been recorded. The record- 
ing of data about an individual should be initiated only upon the report 
of a crime and the commencement of criminal justice system proceed- 
ings. 

B. The participants should limit data collection to only that which is 
relevant for the criminal justice process. Thus, data about individuals 
such as contained in census, tax, election, unemployment insurance, and 
similar files should not be collected or accessed through the System. 

C. The participants should specifically exclude from the System all 
unverified information such as informant-supplied data or intelligence 
data. 

Article II. Integrity of Information 

Section l. Assurance of individual privacy. The participants 
should make a continuous effort to refine every step of the criminal 
justice information system provided by SEARCH to assure that the 
most sophisticated measures are employed and the most perceptive 
judgments are made in the development and operation of the System to 

45 



247 

optimize the protection of individual privacy. 
Section 2. Collection and maintenance of data. 

A. The participants should be greatly concerned with the complete- 
ness and accuracy of the information in the System. Regular auditing 
of the data bank should be undertaken to assure the reliability of stored 
data. 

B. The participants should establish criteria for re-evaluation of the 
data contamed in the System and for purging where deemed appropri- 
ate. 

C. The participants should provide measures for purging from the 
Central Index the computerized file of the record of first offenders 
where criminal proceedings have resulted in a determination in favor 
of such persons. 

D. The participants should encourage the provision of procedures 
for an individual to learn the contents of the arrest record Kept about 
him and for the correction of inaccuracies or prejudicial omissions in 
a person's arrest record. 

Section 3. Dissemination of data. 

A. The participants should develop a classification sub-system to 
assure that sensitive data is provided premium security and that all data 
is accorded appropriate protection. Data should be disseminated to 
criminal justice agencies on a "need-to-know" basis. 

B. The participants should make provisions in appropriate cases to 
limit the derogatory impact of arrest records by providing meaningful 
descriptions of the nature of a person's criminal act so that false conclu- 
sions concerning the character of the individual are avoided. 

C. The participants should employ a high level of computer, legal, 
physical, information, communications, and personnel security meth- 
ods to reduce the possibility of breaching the security of the System. 

Section 4. Advisory committee. The participants should establish 
an advisory committee to provide policy direction for the System and 
to entertain complaints about alleged intrusions on individual privacy. 

Article III. Use of Data Base for Research 

Section l. Commitment to privacy. Where research is conducted 
as an activity of the System or utilizing data contained in the System 
Data Bank, the participants should recognize and affirm the claim to 
private personality and have a positive commitment to respect it. 

Section 2. Safeguarding anonymity. 

A. In the conduct of research, participants should divorce the iden- 
tification of the individual as fully and as effectively as possible from the 
data furnished and preserve anonymity by aggregating, coding, and 
other appropriate measures. 

B. Participants should safeguard research data in every feasible and 
reasonable way, and destroy the identification of the individual with 
any portion of the data as soon as possible, consistent with the research 
objectives. 



46 



248 



Appendix B 

Biographical Data 

Security and Privacy Committee 

DR. ROBERT R. J. GALLATI, Chairman 

Dr. Gallati is currently the Director of the New York State Identification and Intelli- 
gence System, a computer-based information system serving the criminal justice com- 
munity of the State. Before his appointment to this position in 1964, Dr. Gallati served 
with the New York City Police Department for 27 years. 

Dr. Gallati received the Doctoral degree in Jurisprudence, Summa Cum Laude, at 
Brooklyn Law School in 1957 and is presently a candidate for the degree of Doctor of 
Public Administration at NYU. He is a member of the Bar of New York and admitted 
to practice in the U.S. Supreme Court and a number of other jurisdictions. As a member 
of the International Association of Chiefs of Police, he has served the Association in a 
number of capacities. 

He is the author of several published articles on Police Administration and Training 
and coauthor of Introduction to Law Enforcement. 

C. J. BEDDOME 

Captain Beddome is Commander of the Data Processing Section of the Arizona Depart- 
ment of Public Safety. He has been associated with the Arizona Highway Patrol since 
1954. After graduating from Northwestern University Traffic Institute in 1962, he was 
assigned command of the Records Bureau until 1968. 

Captain Beddome was among those who set the standards and procedures for the FBI's 
NCIC system, and has assisted in the development of numerous police record-keeping and 
data processing systems. 

GEORGE E. HALL 

Mr. Hall is the Director of the National Criminal Justice Statistics Center within the 
Law Enforcement Assistance Administration. He was formerly v/ith the United States 
Bureau of the Census. 

In 1969, he received the United States Department of Commerce Silver Medal for 
Outstanding Federal Service in the development of statistical programs. He received a 
B.A. in Economics from Howard University. 

H. W. McFARLING 

Chief McFarling has, since October 1967, been head of the Data Processing Division 
of the Texas Department of Public Safety. Immediately prior to this appointment, he 
served as chairman of the committee studying the feasibility of a comprehensive computer 
system for the Department of Public Safety. He has served with the department since 
1938, and since 1957, has specialized in program development, inspection, and planning. 

Chief McFarling has taught in the Texas Municipal Police School and the Department 
of Public Safety's Recruit Training Schools for a number of years. 

EMERY BARRETTE 

Mr. Barrette is the Executive Director of the Minnesota Governor's Commission fen 
Crime Prevention and Control. He is a member of the St. Paul Board of Education and 
is an ordained United Methodist minister. 

He was a member of the Minnesota House of Representatives (1967-69) and authored 
considerable criminal justice legislation. He formerly served as a chaplain in the county 
workhouse and jail, the juvenile court and city police department. 

He was named one of Ten Outstanding Young Men of Minnesota in 1965 and received 
the Liberty Bell Award and Service to Freedom Award from the Ramsey County and 



47 



249 

Minnesota Bar Associations in 1966. He received a B.A. from Hamline University and a 
B.D. from Drew University. 

DAVID R. WEINSTEIN 

Mr. Weinstein is the Executive Director, State of Connecticut Planning Committee on 
Criminal Administration. He earned a B.A. (magna cum laude) from Yale University in 
1959 and an L.L.B. (cum laude) from Harvard Law School in 1962. 

CONSULTANTS 
CHARLES LISTER 

Professor Lister is currently an Associate Professor at the Yale Law School. His major 
teaching and research activities center on constitutional law and history, with particular 
emphasis on the emerging constitutional right of privacy. 

Mr. Lister graduated from Harvard in 1960, magna cum laude, and attended Oxford 
University as a Rhodes Scholar receiving a graduate degree in law in 1963. 

Immediately prior to accepting a position at Yale, Professor Lister served as law clerk 
to Mr. Justice John M. Harlan of the U.S. Supreme Court. He is a member of the Bar of 
the District of Columbia. 

JEROME LOBEL 

Mr. Lobel is currently Regional Supervisor of Management Services for Ernst & Ernst 
in Phoenix, Arizona. He has worked extensively in Arizona and California in the develop- 
ment of data processing systems. 

Mr. Lobel received his B.S. and MBA. from UCLA and has had over 18 years of 
experience in a variety of data processing and management assignments. 

He has particular expertise in computer security problems. One of his major assign- 
ment areas in recent years has been the comprehensive evaluation of controls in computer 
installations of numerous Ernst & Ernst clients. 



48 



250 



Appendix C 
Glossary of Terms 



Application Program 

Computer programs that perform user-oriented functions or solve user problems. 

Auxiliary Storage 

Devices that may be connected to a computer to hold data for subsequent processing. 
Also called secondary storage. Examples include drums, disk drives, magnetic tape trans- 
ports, and other peripheral devices. 

Batch Processing 

The processing of data in a sequential or serial fashion. The data consists of similar 
items or transactions that have been specially sorted and batched for processing purposes. 

Buffer 

Auxiliary data storage outside of main memory designed to hold data temporarily and 
to compensate for speed differences between slower electromechanical input/output de- 
vices and the speed of the computer's central processor. 

Central Processor Unit (CPU) 

That part of a computer system that controls instruction execution and internal mem- 
ory. It normally contains the arithmetic unit and special registers. 

Core 

The internal memory of a computer consisting of tiny, doughnut-shaped components 
about the size of a pinhead. Cores are made from a special ferromagnetic, ceramic material. 
Each core is capable of storing in magnetized form one bit of data. 

Coresident Program 

The condition where more than one computer program is allowed to reside in and share 
the internal memory of a computer. 

Criminal Case History 

The record(s) of an individual resulting from each formal stage of the criminal justice 
process. 

Criminal Justice System 

That part of governmental jurisdiction that encompasses the broad functions of police, 
prosecution, criminal courts, probation, correctional institutions and parole. 

Data Bank 

A centralized collection of information which may take any number of forms, among 
them; 

Autonomous. Wholly for statistical studies and services; no regulatory/control func- 
tions. 

Independent. Information coordination confined to one subject area; not part of any 
line operations. 

Interagency Administrative. Data collection and management for general administra- 
tion at a particular layer of government. 

Agency. A computer system within one agency to collect and use data to aid in 
decision-making. 

Mixed Public/Private. Combined effort of government and private agencies; estab- 
lished under a private trust agreement. 



49 



251 

Data Track 

A sequence of binary cells arranged in a way that permits serial reading or writing on 
some surface. It is the part of a moving storage media such as a tape, disk, or drum that 
is accessible to a particular read/write station. 

Degaussing 

A protective measure that involves overwriting or re-recording on a magnetic surface 
in such a way as to completely erase the original data. 

Digital Computer 

A device capable of performing a series of internally stored instructions such as certain 
arithmetic or logical operations. 

Direct Access Devices 

Devices that may be connected to a computer (directly or at a remote location), and are 
capable of accessing on-line computer files and other system components. A terminal is 
a typical direct access device. 

Due Process 

The legal rights of an individual to know about, explain and challenge any information 
used to make official judgments about him in the public sphere of government action. 

Electromagnetic Radiation 

The wave-lengths or frequencies produced by a source of electric current. 

External Labeling 

The physical labeling of removable storage media. 

File Protect 

A protective feature designed to prevent accidental overwriting of data on magnetic 
media already containing other live or vital data. An example would be a removable file 
protect ring. 

Forgiveness Principle 

The philosophy which results in the removal from an active file (or erasure) of dated 
information that is no longer directly relevant to decisions to be made about an individual. 

Hardware 

Any physical part of a computer-oriented equipment configuration. 

Individual Privacy 

The legal and moral right to be safeguarded against a personal intrusion as a Result of 
having sensitive personal information fall into the possession of an unauthorized receiver. 

Information Compromise 

To intentionally or accidentally expose or surrender information to an unauthorized 
receiver. 

Instruction 

A coded program step that directs a computer to perform a particular operation. 

Integrity 

The assurance that data in a system is protected against compromise or contaminatioji. 

Intelligence 

The result of the collection, correlation, and analysis of data from a wide variety of 
sources: identification, criminal histories, unverified reports, covert sources, etc. 

Internal Labeling 

The magnetic recording of file identification and contents at the beginning and end of 
each tape or disk, etc. 

Law Enforcement Assistance Administration (LEAA) 

The agency within the Department of Justice established to administer the Omnibus 
Crime Control and Safe Streets Act of 1968. 

50 



252 

Memory 

A device which can hold information. A primary example would be core memory in 
a computer. 

Memory Protect 

A feature that provides protection to programs, data, and operating systems that may 
be residing in the memory of a computer. 

Modem 

An integral part of a data communications system used to interface a carrier to a line 
terminal. 

Multiprocessing 

The combined use of two or more connected computers, which share each other's 
resources such as input-output capabilities and peripheral devices. 

Multiprogramming 

The ability to run two or more programs in the internal memory of a computer at the 
same time. 

National Crime Information Center (NCIC) 

A computerized index and communications network linking law enforcement agencies 
throughout the United States with the FBI. 

Need-to-Know 

The specification of what kind(s) of information is to be made available to a qualified 
user of a data system. 

On-Line Files 

Files held in some auxiliary storage devices that are directly connected to and accessible 
to a computer. 

Operating System 

The programming system inserted into a computer to control and simplify certain basic 
functions such as input-output procedures, data conversion, tests, and other system sub- 
routines (programs). 

Overwriting 

Changing existing magnetically recorded data to some other data by "writing-over" or 
re-recording on the same surface. 

Privacy 

The claim by individuals, groups, or institutions to determine for themselves when, 
how, and to what extent information about them is communicated to others. 

Privileged Instructions 

Special computer instructions designed to reduce the misuse of one program input- 
output device by another program. 

Program 

The detailed instructions that tell the computer how to proceed in solving a problem. 

Project SEARCH 

Project SEARCH (an acronym for System for Electronic Analysis and Retrieval of 
Criminal Histories). A project to demonstrate the capabilities of interstate exchange of 
criminal history data and statistical retrieval. 

Public Record 

Data recorded by public officers in consequence of public duties, at the conclusion of 
relatively formal and often public proceedings. 

Purging 

A system for the orderly review of a file's content to remove inactive or low-value data. 



51 



253 

Right-to-Know 

Specification, by statute or administrative rule, as to who shall have access to an 
information system. 

Security 

The protection of information in storage and transit from unauthorized access or 
tampering. 

Sensitivity (Data) 

Anticipate consequences of disclosure or modification of data. 

Software 

Computer programs and all supporting documentation such as logic diagrams and 
instruction or program listings. 

Storage Media 

Removable or non-removable devices or components that contain machine readable 
data. Removable storage media may be referred to as external storage since that data can 
be completely removed from the computer. Examples include disk packs, magnetic tape 
reels, punched cards, and paper tape. 

System Security 

The ability to restrict the availability of specific information to authorized individuals, 
and the ability to physically protect all parts of the system, including both the data and 
the system that processes the data from any form of hazard that might endanger its 
integrity or reliability. 

System Supervisor 

A special control program normally part of an operating system. A program designed 
to control loading and relocation of other programs. 

Terminal 

An input-output device that may be connected to the computer directly or at some 
remote (distant) location. 

Time-Sharing 

The use of a computer by two or more users (located at the computer or at remote 
terminals) in such a way as to appear to each user that he is the sole occupant of the system. 

Unauthorized Disclosure 

The release of information to those not qualified to receive it. ^ 



52 



254 



Appendix D 
Selected Bibliography 



I. BOOKS 



Allen, Layman E., and Caldwell, M. E. Communications Science and Law. New York: 

Bobbs Merrill, 1965. 
Barker, Lucius J., and Barker, Twiley W. Freedoms, Courts, Politics: Studies in Civil Liberties. 
Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1965. 

Brenton, Myron. The Privacy Invaders. New York: Coward-McCann, Inc., 1964. 

Burck, Gilbert, et al. The Computer Age. New York: Harper and Row, Publishers, 1965. 

Cipes, Robert M. The Crime War. New York: World Publishing, 1968. 

Cushman, Robert F. Civil Liberties in The United States. Ithaca, N.Y.: Cornell University 
Press, 1966. 

Gregory, Robert H., and Van Horn, Richard L. Automatic Data Processing Systems: Princi- 
ples and Procedures. 2nd edition. Belmont, Calif.: Wadsworth Publishing Co., 1963. 

Gross, Hyman. Privacy — Its Legal Protection. New York: Oceana Publications, Inc., 
1964. 

Hattery, Lowell H. Executive Control and Data Processing. Washington, D.C.: Anderson 
Kramer Associates, 1959, 

Hearle, Edward and Mason, Raymond J. A Data Processing System for State and Local 
Governments. Englewood Cliffs, N.J.: Prentice-Hall, 1963. 

Hofstader, Samuel H. The Development of the Right of Privacy in New York. New York: 

The Grosby Press, 1954. 
Johnson, Richard A., and Kast, Fremont E. The Theory and Management of Systems. New 

York: McGraw-Hill Book Company, Inc., 1963. 
Jones, Edgar A. (ed.). Law and Electronics: The Challenge of a New Era. Albany: Matthew 

Bender, 1962. 
Kozmetsky, George, and Kircher, Paul. Electronic Computers and Management Control. 

New York: McGraw-Hill Book Company, Inc., 1956. 
Long, E. V. The Intruders: The Invasion of Privacy by Government and Industry. Frederick 

A. Praeger, N.Y. 1967. 

Orwell, George. 1984. New York: Harcourt Brace and World, Inc., 1949. 

Packard, Vance. The Naked Society. New York: David McKay, 1964. 

Rubinoff, Morris. Toward a National Information System. Washington, D.C.: Spartan 
Books, 1965. 

Shils, Edward. "Social Inquiry and the Autonomy of the Individual," in Lerner, Daniel 
(ed.). The Human Meaning of the Social Sciences. Cleveland: World Publishing Co., 1959. 

Thomas, Shirley. Computers. New York: Holt, Rinehart, and Winston, 1965. 

Tomeski, Edward A., Wescott, Richard W,, and Covington, Mary (eds.). The Clarifica- 
tion, Unification and Integration of Information Storage and Retrieval. New York: Manage- 
ment Dynamics, 1961. 

Trebach, Arnold. The Rationing of Justice. New Brunswick, N.J.: Rutgers University 
Press, 1964. 

Westin, Alan F. Privacy and Freedom. Atheneum, N.Y. 1967. 



53 



255 
II. PERIODICALS 

Bates, Alan. "Privacy — A Useful Concept?" 42 Social Forces 1964. 

Bergamini, David. "Government by Computers." The Reporter, XXV, No. 3 (August 

17, 1961), 21-28. 
Bigelow, R. P. "Automation and the Law," Boston Bar Journal VI (September, 1962), 

31-33. 

Bigelow, Robert P. "Legal and Security Issues Posed by Computer Utilities." Harvard 
Business Review, Vol. 45, No. 5, Sept.-Oct. 1967. 

Bisco, Ralph L. "Social Science Data Archives: A Review of Developments," American 
Political Science Review, LX (March 1966), 93-109. 

Boehm, George A. W. "The Next Generation of Computers," Fortune, LX (March 1959), 

132-135. 
Buckley, J. L. "Computers, Automation, and Security." Law and Order, March 1965. 

Buckley, J. L. "The Future of Computers in Security and Law Enforcement." Law and 
Order, August 1965, Pt. 1 and 2. 

Campbell, Alan and Woods, Alan. "Computers and Freedom". Law and Computer Tech- 
nology, June 1969. 

"Computers: A Question of Privacy". Electronics, February 6, 1967, 36-38. 

Computerworld: 
— "Data Files Greatly Threaten Individual Privacy", December 17, 1969. 
— "Congress Warned on Two Proposed Giant Data Banks." December 31, 1969. 
— "Computer May Become 'Tool of Repression' ", December 24, 1969. 
— "Writ of 'Habeas Data' Advocated by Westin", January 21, 1970. 

Davis, Frederick. "What Do We Mean by 'Right to Privacy'," South Dakota Law Review, 
IV (Spring 1959), 1-24. 

Ervin, Sam J. "The Computer and Individual Privacy." Vital Speeches of the Day, (May 
1, 1967), 421. 

Gallati, Robert R. J. "Criminal Justice Systems and the Right to Privacy." Public Auto- 
mation, (July, 1967). 

Heckscher, August. "The Invasion of Privacy: The Reshaping of Privacy," American 
Scholar, 13 (1959). 

"Invasion of Privacy," University of Pittsburgh Law Review, XIX (Fall, 1957), 98-111. 

Karst, K. L. "The Files: Legal Controls Over the Accuracy and Accessibility of Stored 
Personal Data," Law and Contemporary Problems, Vol. 31 (Spring, 1966). 

King, D. B. "Electronic Surveillance and Constitutional Rights: Some Recent Develop- 
ments and Observations," George Washington Law Review, XXX (October, 1964), 240-269. 

Lasswell, H. D. "The Threat to Privacy," in R. M. Maclver (ed.) The Conflict of Loyalties, 
(1952). 

Lear, John. "Whither Personal Privacy," Saturday Review, July 23, 1966. 

McCarthy, John. "Information," Scientific American, CCXV, No. 3 (September, 1966), 

65-72. 

Meldman, Jeffrey A. "Centralized Information Systems and the Legal Right to 
Privacy," Marquette Law Review, \'o\. 52, No. 3 (Fall, 1969). 

Michael, D. N. "Speculations on Relation of Computer to Individual Freedom and the 
Right to Privacy," George Washington Law Review, XXX (October, 1964), 270-286. 

Miller, Arthur R. "The National Data Center and Personal Privacy," The Atlantic, Vol. 
220, No. 5 (November, 1967). 

Packard, Vance. "Don't Tell It to the Computers," NY Times Magazine, January 8, 1967. 

Price, Dennis G., and Mulvihill, Dennis E. "The Present and Future Use of Computers 
in State Government," Public Administration Review, XXV, No. 2 (June, 1965), 142-150. 

"Privacy: Debate Will Rage and Confuse the Issues, But a National Data Center Will 
Become Reality." Business Automation, January, 1970. 

"Privacy," Law and Contemporary Problems, XXXI, No. 2 (Spring, 1966). 
54 



256 

Prosser, William. "Privacy," California Law Review, XLVIII No. 3 (August, 1960), 383- 
423. 

Revere, Richard. "The Invasion of Privacy: Technology and the Claims of Com- 
munity," 27 American Scholar, 416 (1958). 

Ruebhausen, Oscar M., and Brim, Jr., Orville, G. "Privacy and Behavioral Research," 
Columbia Law Review, LXV (November, 1965), 1184-1211. 

"Science, Technology and the Law." Saturday Review, Vol. LI., No. 31, (August 3, 1968), 
pp 39-52. 

Shils, Edward A. "Privacy: Its Constitution and Vicissitudes," 31 Law and Contemporary 
Problems, 281 (Spring, 1966). 

Stone, J. "Man and Machine in the Search for Justice," Stanford Law Review, XVI (May, 
1964), 515-560. 

"System Development for Regional, State, and Local Government," System Development 

Corporation Magazine, VII, No. 10 (October, 1965), 1-27. 
Warren, Samuel D., and Brandeis, Louis D. "The Right to Privacy," Harvard Law 

Review, IV, No. 5 (February, 1890), 193-220. 

Weeks, James. K. "Comparative Law of Privacy," Clev. Mar. Law Review, XXII (Septem- 
ber, 1963), 484^502. 

Westin, Alan F. "Science, Privacy, and Freedom: Issues and Proposals for the 1970's" 
Part I: "The Current Impact of Surveillance on Privacy," Columbia Law Review, LXVI, 
No. 6 (June, 1966), 1004-1048. Part II: "Balancing the Conflicting Demands of Privacy, 
Disclosure, and Surveillance," Columbia Law Review, LXVI, No. 7 (November, 1966), 
1205-1253. 

Westin, Alan F. "New Laws Will Protect Your Privacy," Think, May /June, 1969. 



III. PUBLICATIONS OF THE GOVERNMENT, LEARNED 
SOCIETIES, AND OTHER ORGANIZATIONS 

American Federation of Information Processing Societies. Conference Proceedings, 1967 
Spring Joint Computer Conference. Washington, D.C.: Thompson Books, 1967. 

American Management Association. Computer-Based Management for Information and Con- 
trol. New York: American Management Association, 1963. 

American Society for Public Administration. Automation in Government, 1963. Wash- 
ington, D.C.: American Society for Public Administration, 1963. 

Armer, Paul. "Social Implications of the Computer Utility." RAND Corp., Santa 
Monica, Calif. (Aug. 1967). 

Baran, Paul. "The Coming Computer Utility Laissez-Faire, Licensing or Regulation?" 
(April, 1967), RAND Corp., Santa Monica. 

Bingham, H. W. Security Techniques for EDP of Multilevel Classified Information. New 
York: Rome Air Development Center, Air Force Systems Command, Griffis Air Force 
Base, 1965. 

Brictson, R. C. "Computers and Privacy — Implications of a Management Tool." SDC, 
(March 14, 1968). 

Burroughs B5500 File Security System. New York State Identification and Intelligence Sys- 
tem. Document prepared for computer security. "Burroughs B5500 File Security 
System." 

The Challenge of Crime in a Free Society. Report of President's Commission on Law En- 
forcement and Administration of Justice. (February, 1967). 

Comber, Edward V. "Management of Confidential Information." System Dynamics, 
Inc., Oakland. Submitted to Fall Joint Computer Conference, 1969. 

Computer and Invasion of Privacy. Hearings before a Subcommittee of the Committee on 
Government Operations, HR, 89th Congress, 2nd Session, (July 26-28, 1966). 

55 



257 

Council of State Governments and Public Administration Service. Automated Data Proc- 
essing State Governments. Chicago: Public Administration Service, 1965. 

Cuadra, C, Isaacs, H. H., Neeland, F., and Wallace, E. M. An Information Center for Law 
Enforcement. A report prepared by System Development Corporation, Santa Monica, 
California. 1964. 

Dennis, Robert L. Security in the Computer Environment. A summary of the Quarterly 
Seminar, Research Security Administrators, June 17, 1965. Santa Monica, California: 
System Development Corporation, 1966. 

Fanwick, Charles. "Maintaining Privacy of Computerized Data." System Development 
Corporation, 1966. 

"Federal Data Centers — Present and Proposed". Computer Privacy. Hearings before the 
Subcommittee on Administrative Practice and Procedure, Committee on the Judiciary, 
U.S. Senate, 90th Congress, 1st Session, March 14-15, 1967. 

IBM Corporation. "Management Control of Electronic Data Processing." A report 
prepared by the IBM Corporation. Technical Publications Department. White Plains, 
N.Y. 1965. 

IBM Corporation. "The Considerations of Data Security in a Computer Environment." 

"Invasion of Privacy." Hearings pursuant to S. Res. 39. 89th Congress, 1st Session, Feb. 
18, 23-24, March 2-3, 1965. Part 2 (Ap. 13, 27-29, May 5-6, and June 7, 1965); Part 3 
(July 13-15, 19-21, 27 and Aug. 9, 1965). 

Isaacs, H. H. User-Oriented Information Systems for State and Local Government. A report 
prepared by System Development Corporation. 1965. 

Miller, Roger F. "Confidentiality and Usability of Complex Data Bases." Social Sys- 
tems Research Institute, University of Wisconsin. May 1967. 

New York State. Individual Liberties: The Administration of Criminal Justice. A report 
prepared by the Temporary State Commission on the Constitutional Convention. Al- 
bany, N.Y. March 16, 1967. 

New York State. Security and Privacy. A document prepared by the New York State 
Identification and Intelligence System. 

Peters, Bernard. "Security Considerations in a Multi-Programmed Computer System." 
National Security Agency, Fort Meade, Md. 

Petersen, H. E. and Turn, Rein. "System Implications of Information Privacy." 
RAND Corporation. April, 1967. 

Rothman, Stanley. "Centralized Government Information Systems and Privacy." 
TRW Systems, September 22, 1966. 

"Special Inquiry on Invasion of Privacy". (Hearings). 89th Congress, 1st Session, June 
2, 3, 4, 7, 23 and September 23, 1965. Part 2, May 24, 1966. 

U.S. Bureau of the Budget. Report to the President on the Management of Automatic Data 
Processing in the Federal Government. 98th Congress, 1st Session, March 4, 1965. 

U.S. Bureau of Labor Statistics. Implications of Automation and Other Technological Develop- 
ments: A Selected Annotated Bibliography. Washington, D.C. 

Ware, W. H. "Security and Privacy in Computer System." RAND Corporation. April 
1967. 

Weissman, Clark. "Security Controls in the ADEPT-50 Time-Sharing System." Sys- 
tem Development Corporation. May 1969. 



IV. UNPUBLISHED MATERIALS 

Baran, Paul. "Communications, Computers and People." California: Rand Corpora- 
tion, 1965 (Mimeographed). 

Babcock, J. D. "A Brief Description of Privacy Measures in the RUSH Time-Sharing 
System." Paper read at the 1967 Spring Joint Computer Conference, Atlantic City, 
N.J., April 18-20, 1967. 

56 



258 

Bisco, Ralph L. "Urban Study Banks: A Preliminary Report." New York: Council of 
Social Science Data Archives, 1966 (Mimeographed). 

Dennis, Jack B. and Glaser, Edward L. "The Structure of On-Line Information Process- 
ing Systems." (Mimeographed.) 

Dunn, Edgar S. Jr. "The Idea of a National Data Center and the Issue of Personal 
Privacy." Presented before MENSA Society, N.Y. Oct. 21, 1966. 

Fazar, Willard. "Federal Information Communities: The Systems Approach." A paper 
read at the 1966 Annual Meeting of the American Political Science Association, New 
York City, September 6-10, 1966. (Mimeographed.) 

Gallagher, Cornelius. "Privacy and the National Data Center." Paper read at the 
Spring Joint Computer Conference, Atlantic City, N.J., April 18, 1967. (Mimeo- 
graphed.) 

Gallagher, Cornelius E. (Rep.-D. N.J.). Statement on Questions of Invasion of Privacy 
Relating to Establishment of National Data Center. Aug. 18, 1966. 

Gill, William A. "Federal-State-Local Relationships in Data Processing." Paper read 

at the Conference on the Large-Scale Public EDP System, New York University, April 

2, 1966. 
Glaser, Edward L. "The Problems of Privacy in Remote-Access Computer System." 

October 3, 1966. (Mimeographed.) 
Hazard, Geoffrey C. "The Sequence of Criminal Prosecution." Paper read before the 

National Symposium on Science and Criminal Justice, Washington, DC, June 22-23, 

1966. (Mimeographed.) 

Lohman, Joseph D. "Changing Patterns of Crime." (Mimeographed.) 

McDonell, R. E. "Cooperative Information Problems for Law Enforcement." White 

Plains, N.Y.: IBM Corporation. (Mimeographed.) 
Mendelssohn, Rudolph C. "Proposed National Data Center — Items for Discussion at 
Symposium." New York: Council of Social Science Data Archives, 1967. (Mimeo- 
graphed.) 

Mindlin, Albert. "Confidentiality and Local Data Systems." Am. Stat. Ass'n Annual 
Meeting — 12/27/67. Washington, D.C. 

Mitchell, John F. "Communications Efficiency and Security." Presented at 74th An- 
nual Conference lACP, Kansas City, September 1967. 

Rothman, Stanley. "Privacy and Government Information Systems." Paper read at 
the Spring Joint Computer Conference, Atlantic City, N.J., April 18, 1967. 

Shils, Edward. "Privacy and Power." A paper read at the 1966 Annual Meeting of the 
American Political Science Association, New York City, September 6-10. (Typewrit- 
ten.) 

Storer, Norman. "Large-Scale Data Collections and the Protection of Privacy." Social 
Science Research Council, 1967. (Mimeographed.) 

Westin, Alan. "Legal Safeguards to Insure Privacy in a Computer Society." Paper read 
at the Spring Joint Computer Conference. Atlantic City, N.J., April 18, 1967. (Mimeo- 
graphed.) 



vcK074-l — 2!9 7-70 lOM 



printed in California office of state printing 



259 



[ 



THE CLOSED DOOR 



The Effect of a Criminal Record 
on Employment with State and Local Public Agencies 



Herberts. Miller 




This report was prepared for the Manpower Administration, U.S. Depart- 
ment of Labor, under research contract No. 81-09-70-02 authorized by 
Title I of the Manpower Development and Training Act. Since contractors 
performing research under Government sponsorship are encouraged to 
express their own judgment freely, the report does not necessarily 
represent the Department's official opinion or policy. Moreover, the 
contractor is solely responsible for the factual accuracy of all material 
developed in the report. 



FINAL PROJECT REPORT 
MA CONTRACT NO. 81-09-70-02 



260 



STANDARD TITLE PACE 
FOR TECHNICAL REPORTS 



'"l^"fel-09-70-02 



2' Gorr. Acce««it>n 
No. 



Titlr and Subtitle 

THE CLOSED DOOR 
The Effect of a Criminal Record on Employment 
with State and Local Public Agencies 



3. Recipirnc's Catalog No 



5- Report Date 

February, 1972 



6. Performing Organization Code 



7. Auihor(5) 

Herbert S. Miller / Deputy Dirfict-.nr 



8' Performing Organizacion Repc. 

No. y 



9. Performing Organization Name and Address 

Institute of Criminal Law & Procedure 

Georgetown University Law Center 

600 New Jersey Avenue* N.W. 
Washington/ D.C. 20001 



10. Protect/Task/Vork Unit No. 



11. Contract /Grant No. 

DL 81-09-70-02 



12. Spottsormg Agency Name and Address 

U.S. Department of Labor 

Manpower Administration 

Office ofFe'search and Development 

Tin 20th St., N.W. Washington, D.C. 20210 



13. Type of Report & Period 
Covered 

Final 



14. Sponsoring Agency Code 



IS. Supplementary Notes 



It. Abstracts The key findings are: 1) An arrest record not followed by con- 
viction is a substantial obstacle to employment; 2) Present annullment 
and expunging statutes do not remove obstacles to employment for those 
with conviction records; 3) Despite statutes declaring juvenile adjudi 
cation to be non-criminal and state policies protecting their confi- 
dentiality, juvenile records are an obstacle to employment; 4) State 
civil service statutes provide no guidelines for civil service person- 
nel to screen applicants with criminal records; 5) Job application forms 
frequently ask for arrest records and do not indicate that an individual 
with a criminal record is eligible for hiring; 6) Civil servie procediires 
generally act as a bar to employment for an individual with a record; 
7) Civil Service educational requirements for many jobs are set too 
high considering the actual job to be done. These requirements dis- 

riminate against many ex-offenders. 



17. Key Words and Document Analysis. 17a. Descriptors 

Civil Service 

Education (includes training) 

Employment 

Government policies 

Juvenile delinquency 

Local government ' ' " 

Performance 

Qualifications 

Rehabilitation 

State government 

17b. loentiders/Open-Ended Terms 

Criminal Records 
Public Employment 

17e. COSATl Field/Group 5A , D , I , K 



nost of whom have a limited education; 
B) Juvenile and adult correctional 
officials do not inform their wards and 
clients of their legal status and ways 
to mitigate the effect of the record 
Dn j-ob opportunities. 



18. Distribution Statement 

Distribution is vmllmlted. Available from 
National Technical Information Service, Springfield 
Va., 22151. 



19. Security Class (This 
Report) 



20. Security Class (This 

'Unclassified 



21. No. of Pages 

252 



22. Price 



$3.00 



rOKM CFSTI.IS 14.701 



USCOMM-OC ••ooa.PTo 



261 



GEORGETOWN UNIVERSITY LAW CENTER 

rNSTlTUTE OF CRIMINAL LAW AND PROCEDURE 

eOO NEW JERSEY AVENUE . N W , WASHINGTON. D C 2000I 

(202> 624-8220 



SAMUEL DASH 
OIHECTOR 

HERBERT S MILLER 

DEFUTV DIRECTOR 



Project Staff 
Herbert S. Miller, Project Director 
Samuel Dash, Director of the Institute 
Walter M. Miller, Assistant to the Project Director 
Stephen B. Rosenberg, Senior Research Attorney 
Stanton G. Darling, Research Attorney 
Martin Krubit, Research Attorney 
Leonard Zeitz, Research Sociologist 
William F. McDonald, Senior Research Criminologist 
George Borkow, Research Associate 

Student Research Assistants: 

Linda Quinn 
Arlene Carrington 
Karen Moore 
H . Cabanne Howard 
Louis Wiley 
William Martin 



1 



262 



1 

TABLE OF CONTENTS 

Page 

Foreward iv 

Introduction 

Summary of Findings and Recommendations 1 

Chapter 1 Analysis of Job Application Forms ii 

Criminal Record Inquiries 
Comprehensive Arrest Inquiry 
Suspicion/Investigation Inquiry 
Automatic Record Check 
Record Not Automatic Bar 

Specific Exclusions 13 

a) Traffic 

B) Juvenile Offenses 

C) Time Limit on Offenses 

D) Sealed Record Exclusion 

Specific Inclusionary Provisions 16 

' A) Traffic 

B) Juvenile Offenses 

C) Defendant in Civil Case 

Findings and Recommendations -^q 

Chapter 2 State Juvenile Policies and Their Effectiveness . . 22 



State Juvenile Policy Charts 

Findings and Recommendations 32 

Model Use of Juvenile Records Statute 34 

Chapter 3 Civil Service Statutes and Rules 36 

General Statutory Provisions 

Firing 

Judicial Interpretations 

Statutes Authorizing the Hiring of Individuals with Records 

Civil Service Rules and Regulations 

Findings and Recommendations 44 



263 



Page 

Model Civil Service Criminal Conviction Statute 47 

Chapter 4 Licensing and a Criminal Record 49 

Chapter 5 Annullment and Expungement of Criminal Conviction • 57 

Introduction 

State Annullment and Expunging Statutes 

Findings and Recommendations 68 

Model Annullment and Sealing Statute 74 

Chapter 6 National Survey of Hiring Practices and Policies. . 78 

Introduction 

Response to the Questionnaires 

The Reported Practices 79 

Types of Jobs Held By Persons With Criminal Records 
Types of Information Requested By Employers from Job 

Applicants 
Information Used by Employers 
The Reported Policy Methods of Obtaining Criminal Record 

Information 
Types of Criminal Records Used as Grounds For Not Hiring 

Applicants 

The Impact of the Practices and Policies 
Assessment of Work Characteristics of Employers with 
Criminal Records 

Findings and Recommendations ^^^ 

Chapter 7 Site Visits at Six Selected Jurisdictions 103 

Comparison of the Six Site Visit Jurisdictions 103 

Demographic Characteristics 
Growth in Number of Employees 

Civil Service Systems ^^^ 

Commissions 

The Hiring Process 



264 



111 



Page 



Job Announcements 

Job Qualifications 

Special Problems of Prisoners 

Attempts to Ease Rigid Requirements 

The Six Jurisdictions 2.21 

1. Nashville-Davidson, Tennessee 

2. Hennepin County (Minneapolis) , Minnesota 

3. The State of Michigan 

4. Newark, New Jersey 

5. Phoenix, Arizona 

6. San Francisco, California 

Findings and Recommendations I39 

Chapter 8 Arrest Records 147 

The Use of Arrest Records 

Effect of Arrest Records 

Arrest Records as Evidencing Criminality 

The Need for Federal Action 

Findings and Recommendations 161 

Appendices 

A - Methodology 168 

B - Analysis of Job Application Forms 175 

C - Juvenile Statutes 177 

D - State Civil Service Statutes 191 

E - Licensing Restrictions 210 

F - Eye For An Eye 216 

G - Expungement Statutes 234 

H - Selected Characteristics of Certain Jurisdictions .... 251 



265 



FOREWORD 

Our criminal justice system is in a stage of disintegration. 
Our jails and prisons brutalize the inmates; there are few rehab- 
ilitative programs available; and many released prisoners swear 
vengeance upon a society which permits human beings to be so 
maltreated. Our probation and parole services are largely under- 
manned, and provide inadequate community supervision. Judges are 
undertrained and provided with few resources upon which to base 
intelligent sentencing decisions. Prosecutors and defense 
attorneys do not receive adequate training in law school, nor do 
they fully understand the role they should play in the criminal 
justice process. 

There is nothing new in the statements contained in the above 
paragraph. The President's Commission on Law Enforcement and 
Administration of Justice, and many other commissions and study 
groups, have amply dociomented the failings of our system. This 
study of the employment problems of people with criminal records 
carries the story of inadequacy and short-sightedness on society's 
part much further. For it clearly illustrates that after subjecting 
individuals to all the horrors of the system we continue to pronounce 
a curse on them if they make an honest attempt to function in 
the community. In our society the ability to work is the 
benchmark by which an individual is judged. And just as clearly, 
we have succeeded in erecting numerous legal, administrative and 



266 



customary obstacles to persons who have any kind of a record, 

including those who are handled as juveniles. 

This study documents, perhaps for the first time, the 

innerdynamics of the system as it really operates on an individual 

with a record. The way in which criminal records are handled, 

frequently in opposition to stated legal and administrative 

policy, brings out into sharp relief the dilemma of a person who 

is asked on a job application form whether or not he has some 

kind of criminal record. To lie or not to lie, that is the question . 

As individuals with records so frequently find out, you are damned 

if you do and damned if you don't. Listen to what an ex-con says: 

"Now if you're out there on the bricks and looking 
for work, Joe, don't bother applying for any of those 
jobs I told you about and you'll save yourself a bundle 
of heartaches. Whenever you apply for any job, my advice 
is not to mention your record. That's right, lie to 'em. 
If they have a place on the employment application where 
it asks you if you've ever been convicted of a crime, put 
down N-0, no! If you don't, you're screening yourself out 
of 75 percent of all jobs, and damned near 100 percent of 
the better jobs. You have to look ahead too, Joe. Big 
Willie, the trustyland barber, has a brother working for 
one of the big steel companies. A friend got him the job, 
white collar too. That was seven, eight years ago. He's 
still on the same job, but guys who have only been with the 
company two or three years are moving right up the line to 
higher job classifications and better pay. Why? His boss 
told him why. He's got a record, and the company knows it's 
on his original employment application. His boss told him 
he was terribly sorry, that it wasn't his fault, but the 
higher-ups passed him up because fifteen years ago he served 
two years in prison. See, Joe, crime don't pay, because 
they ain't never going to let you up once they got you 
down. That's just the way it is. 

Go ahead and tell 'em if you want to, Joe. You're 
taking a chance no matter what you do. If you tell 'em, you 
don't get the job most of the time. If you don't tell 'em, 
and they find out, they fire you. You know Louie, the 
cellhouse clerk? He got a job and didn't tell 'em about 
his record. Louie's parole officer came around checking on 
him and blowed the job for Louie. How do you like them 
apples? And Gabby, the four block runner, went out and 
got a job that'll knock you out. He was hired as a credit 
investigator; Yah, handling confidential financial reports 



267 



all day long. While he was still on parole too. His 
parole officer was an OK guy and said more power to 'em. 
Well, it took about two months because the employment 
application investigation isn't handled by regional 
offices but is done by the main office in New York. 
One day his boss calls him in, red- faced and all, and 
says to him, v^y didn't you tell us? Louie says, if 
I'd told you, would you have hired me? His boss says, of 
course not! Louie was canned."* 

Although this study concentrates on civil service at the state and 

local level, its findings and recommendations are really applicable to 

the entire job market and to many private employers as well. The findings 

and recommendations of this study offer a blueprint for the reform of our 

national, state and local legal and administrative structure as it relates 

to people with criminal records and their attempts to find a job. There 

are model state laws suggested for realistic and effective expunging and 

annullment of conviction records, a juvenile record act which effectively 

prevents such records from being used when a job, license or bonding is 

at stake, and a suggested state civil service statute which sets the 

tone for state policy as encouraging the employment of individuals with 

records and which provides guidelines for the civil service commission 

or employing agency. 

In addition, the study illustrates the obstacles which begin with 

the job application form. The questions asked undoubtedly deter indiv- 
iduals with criminal records from even filling out the application form. 
The study suggests total reconstruction of that section of the job 

application forms so as to make clear that a criminal record will not by 
itself prevent an individual from obtaining a job. 

^ Griswold, Misenheimer, Powers, and Tromanhauser , An Eye For An Eye , 
p. 265-266 (1970) . 



268 



But the most striking finding and recommendation in this 
study relates to the existence and influence of arrest records 
sheets on perhaps one quarter of the population of the United 
States and the inadequate and distorted picture they may give of 
an individual's contact with the criminal justice system. In my 
opinion, the study documents beyond any reasonable doubt, that 
the existence and dissemination of these records amounts to an 
organized attempt by our society which prevents many individuals 
from functioning. 

It is clear that action by the states or through the courts 
is an inadequate remedy. Although less clear, the basic elements 
for supporting Federal intervention have been set forth with 
precision and clarity. Undoubtedly further study will be necessary 
and it is now going on. The important thing is to move with 
dispatch to correct a problem which is now a national disgrace. 
Arrest records not followed by conviction should never be the 
basis upon which to reject an application for a job, license or 
bond. 

The existence of this study and others, combined with the 
interest expressed by officials of the United States government 
and the American Bar Association, point to a convergence of 
interests which may not be repeated in the near future. If ever 
the time was propitious for an organized assault upon an outdated 
legal and administrative structure, it is now. The price we pay 
for continued reliance on a system which fails to rehabilitate, 
and worse which distorts and prevents human capabilities, is the 
specter of an increasing number of embittered and alienated 
individuals who will continue to explode in the faces of our 



269 



children and their children. It is in our self-interest to provide 
a structure which encourages an individual to take his place as a 
functioning and productive member of society. 



Samuel Dash, Director 

Institute of Criminal Law & Procedure 

Georgetown University Law Center 



270 



Introduction* 

Previous studies of criminal records and employment have been 
largely limited to examing the practices of private employers as 
they related to ex-offenders. But few have been found which examined 
the practices of state and local government . Moreover, statistics 
indicate that over thirteen million persons are employed in state 
and local government, this being approximately 15% of the nation's 
total labor force. (As of December, 1971) . All trends indicate a 
rapid expansion of employment possibilities. These factors dictated 
the thrust of this study. 

The major conclusion of the study has been that the primary 
objective must be the reform of our legal and administrative structure 
at the state and federal level. This is initially reflected in the 
recommendations for both federal and state legislation. Other 
recommendations relate to changes in the format of job application 
forms and rules and regulations governing the processing of applicants 
with records. The job application forms must be completely revised 
in terms of the questions asked and the guidance they give to the 
applicant. There must be clear and precise standards promulgated by 
civil service commissions and distributed to personnel department 
employees and job applicants. In short, the subject must be brought 
out in the open. 



* See Appendix A for statement of methodology used in the 
survey. 



271 



obviously a massive job of education must be undertaken before 
the person with a criminal record can be fairly treated in our 
society. This was not within the purview of the study. But clearly 
the reeducation of people must be preceded by legal and administrative 
reform. 

The American Bar Association, through its Special Commission on 
Correctional Services and Facilities and its Section of Criminal Law 
has already pledged to use the findings and recommendations of this 
study as a starting point to energize state and local bar associations 
to spark the legislative and administrative changes which will be 
required.* The Department of Labor is already operating experimental 
bonding programs and New York licensing practices as related to indi- 
viduals with conviction records are being examined.** 

This project could not have been undertaken or completed 
without the generous help from many people in the Manpower Administration 
of the U.S. Department of Labor. Among these was the constant 



* The Labor Department has made a substantial grant to the 
American Bar Association for this purpose. 

** For information concerning this pilot program write Manpower 
Administration, UoS. Department of Labor, Washington, D.C. 
20210, and ask for the Federal Bonding Program, Questions 
and Answers (1971) . 



272 



encouragement, support and understanding given to the Project 
Director and others by William Paschell, Chief, Special 
Manpower Problems Group. This support would not have been 
possible without the firm back-up of Mr. Paschell 's superior, 
Howard Rosen, Director, Office of Research and Development. 
Project staff of the survey continually received sympathetic 
encouragement and assistance from all Manpower Administration 
personnel, including Joseph W. Collins, Jr. and Eugene Johnson. 
It has been a pleasure for members of the Institute of Criminal 
Law and Procedure to have participated in this joint venture. 



273 



Siimmary of Findings and Reconmendations 

1. Finding — Arrest records as job barriers — Most juris- 
dictions ask about arrest records. Arrest records are grounds for 
not hiring in many jurisdictions. Many Americans have arrest records 
(not followed by conviction) . Criminal records kept by law enforce- 
ment agencies are frequently inaccurate. The problem is national in 
scope and not susceptible to being corrected by state legislation or 
court action. See Chapter 8, Arrest Records. 

Recommendat ion — Federal legislation should prohibit all public 
or private employers from asking about eirrest records on job applica- 
tion or other forms. Law enforcement agencies should be prohibited 
from divulging arrest records (not followed by conviction) where a 
request for record information concerns an application for a job, 
license, bonding, or any civil right or privilege. 

2. Finding — Inadequate expungement and annullment statutes — 
Many states have such statutes, but most have proven inadequate con- 
cerning their effect when a person with an expunged record applies for 
a job. Many do not delineate the meaning of expungement or annullment. 
See Chapter 5, Annullment and Expunging Statutes. 

Recommendation — States should enact annullment and expungement 
statutes which require persons discharged from probation, parole and 
imprisonment to be informed of their right to apply for expungement 
and annullment. The court should grant such an order unless it finds 
the order inconsistent with the public interest. The court should 



274 



state its reasons for not granting an order and its refusal should 
be appealable. If within two years following a termination of pro- 
bation, parole, and final discharge from prison an order has not been 
granted, and no subsequent conviction has occurred, the court should 
enter an order on its own motion. 

The statute should further provide that the effect of an order 
expunging and annulling a conviction should be to prevent inquiries 
about such a conviction being made as they related to an application 
for a job, license, bonding, or any civil right or privilege. It 
should require that law enforcement agencies be notified and therefore 
put on notice that they may not divulge the record for these pruposes. 
See Model Annullment and Sealing Statute at p. 74. 

3. Finding — Confidential status of juvenile records — 
Despite state statutes relating to the confidentiality of juvenile 
records evidence indicates that employers frequently have access to 
them. Few states have statutes requiring the sealing and subsequent 
physical destruction and obliteration of juvenile records after an 
appropriate period of time. See Chapter 2, state Juvenile Policies 
and Their Effectiveness. 

Recommendat ion — States should enact a Use of Juvenile Record 
Statute which provides for all records to be sealed. Except for sen- 
tencing and certain law enforcement purposes, such records should not 
be released where a request for information is related to an applica- 
tion for employment, license, bonding, or any civil right or privilege. 



275 



Records of juvenile proceedings where no adjudication is entered 
should not be released under any circumstances. 

The statute should explicitly require that juveniles be informed 
of these procedures and how the status of their juvenile record relates 
to whether or not they must acknowledge this record on any applications 
or in any other proceedings. 

Two years after a juvenile proceeding, and where no subsequent 
adjudication or conviction has occurred, the entire file and record 
of the proceeding should be destroyed and obliterated by order of the 
court. See Model Use of Juvenile Record Statute at p. 34. 

4. Finding — Civil Service statutes as barriers — Civil 
service statutes, which vary in the different states, invariably offer 
inadequate guidelines to civil service commissions and personnel 
directors. Most use language which could be, and apparently is, 
grounds to exclude large numbers of individuals with criminal records. 
Few statutes state that applicants with criminal records may be eligible 
for civil service employment. Few statutes provide for any amelioration 
of the effect of a criminal record. See Chapter 3, Civil Service 
statutes and Rules. 

Recommendation — Civil service statutes should have an express 
provision stating that no person with a criminal conviction record 
shall be automatically disqualified from taking a civil service exam- 
ination. Such statutes should also specify that such applicants are 
entitled to equal processing under the rules. Finally they should 



276 



provide guidelines for hiring officials to use in making their discre- 
tionary hiring decisions. See Model Civil Service Criminal Conviction 
Statute at p. 47 . 

5. Finding — Criminal record inquiries by civil service — 
Almost all jurisdictions ask about criminal records. Few state that a 
record does not automatically disqualify the applicant. See Chapter 1, 
Analysis of Job Application Forms. 

Recommendat ion -- All job applicants should be advised that a 
criminal record does not automatically disqualify the applicant. See 
Finding and Recommendation No. 6. 

6. Finding — Review of juvenile records by civil service — 
State statutes regard juvenile records as non-criminal, and not a 
conviction. They frequently specify that it is not grounds for civil 
service disqualification. Yet few jurisdictions advise the applicant 
to exclude a juvenile record on the job application forms. Some 
jurisdictions specifically ask for the inclusion of juvenile records. 
See Chapter 2. 

Recommendation — Job application forms should advise applicants 
to exclude any juvenile record. 

7. Finding — Few jurisdictions advise applicants to exclude old 
criminal records which may have little value in determining the appli- 
cant's present status. See Chapter 1. 

Recommendation — The model annullment statute would remedy this 
problem. In the alternative, job application forms should declare a 
period of time beyond which criminal records need not be revealed. 



277 



8 

8. Finding — Lack of civil service guidelines as a barrier — 
Civil service regulatiors which govern the processing of individuals 
with criminal records are either non-existent, inadequate, or not 
communicated. This permits personnel employees to screen out appli- 
cants with crimina records using discretion unregulated by any stand- 
ards. See Chapter 3. 

Recommendat ion — Clear rules and regulations should be promul- 
gated, distrubuted and followed-up by discussion of their meaning. 
In particular, they should be made available to job applicants prior 
to forms being filled out or examinations being taken. 

9. Finding — Civil service employment delays — Some juris- 
dictions had long delays between submission of an application and a 
job decision. Individuals leaving prison need jobs right away. See 
Chapter 7, Site Visits at Six Selected Jurisdictions. 

Recommendat ion — Efforts should be made to shorten this time. 

10. Finding — High civil service education requirements — 
Standards frequently require a high school education for too many 
jobs. Many offenders do not have a high school education. See Chap- 
ter 7. 

Recommendation — Educational criteria should be re-examined to 
make certain that only necessary educational levels are established 
for each position. 

11. Finding — Civil service job announcements — Examination 
announcements are frequently not communicated to prison inmates. See 



278 



Chapter 7. 

Recomitiendation — Efforts should be made to provide for wide 
distribution and communication of job announcements. 

12. Finding — Civil service examinations in prisons — Prison 
inmates frequently cannot get released to take examinations. In some 
jurisdictions civil service personnel could not or would not administer 
examinations at the prison. See Chapter 7. 

Recommendation — A way should be found to bring examinations 
and applicants together. 

13. Finding — Inadequate civil service data collection — Most 
agencies had no statistical data concerning their employment of indivi- 
duals with criminal records. See Chapter 6, National Survey of Hiring 
Practices and Policies. 

Recommendation — Government agencies should gather statistical 
information to provide rational grounds for instituting, abandoning, 
or modifying employment policies. 

14. Finding — Probation and parole officers are rarely involved 
in the expungement process. See Chapter 5. 

Recommendat ion — Probation and parole officers should be auth- 
orized to initiate annullment proceedings. See model statute. 

15. Finding — Job standards as barriers — Some jobs require 
an apprenticeship, or extensive prior experience. These requirements 
were an obstacle in some cases. See Chapter 7. 



279 



10 



Recommendation — Prison, union, and public employment officials 
should attempt to establish reasonable apprentice and experience re- 
quirements. Prison training should meet these requirements and union 
and public employment officials should agree to accept qualified ex- 
offender graduates. 



280 



11 



Chapter 1 
Analysis of Job Application Forms 

A significant aspect of this survey was the collection of 
job application forms from a number of jurisdictions. 
These made the survey staff aware of how significant a criminal 
record is in terms of obtaining employment. They further revealed 
the frequency with which arrest record inquiries (where no 
conviction has followed) are included in the job application forms. 
Criminal Record Inquiries 

Those jurisdictions classified as as)cing "arrest" questions 
are counted according to the lowest denominator phrase used, thus 
a question beginning with "convicted" but including "arrest" would 
be classified under "arrest". Of 48 tabulated responding states, 
one, Nebraska, asks no questions relating to previous offenses 
or criminal record. Twenty-six states (54%) start their queries 
with "arrested", "charged", or "cited". Twenty-one states (44%) 
query the applicant about "convictions", "sentences", or "imprisonment" 

Of the 170 tabulated responding counties, 33 (19%) sought no 
information relating to previous offenses, 94 (55%) sought arrest 
information and 43 (25%) sought convictions only. Of the 224 
tabulated responding cities, 12 (5%) sought no information, 172 
(77%) sought arrest information, and 40 (18%) sought convictions 
only. 
Comprehensive Arrest Inquiry 

Occasionally a questionnaire would inquire about previous 
offenses or criminal record with an elaborate, comprehensive question 
such as "Have you ever been arrested, indicted, summoned, convicted, 
fined, imprisoned, placed on probation, or ordered to deposit bail?" 



* See Appendix B for statistical analysis of job application forms. 



281 



12 



Where this question, or one similar in form, was asked, the 
following tabulations resulted: Two states (approximately 4% of 
all states tabulated) , 14 counties (approx. 8% of all counties 
tabulated) , and 13 cities (approx. 6% of all cities tabulated) 
asked such a question. 
Suspicion/Investigation Inquiry 

A few jurisdictions, usually when asking an "arrest" question, 
would include a statement as to whether the applicant had been 
arrested for suspicion or investigation. According to the tabulation, 
no state, three counties (2% of those tabulated) , and fourteen 
cities (6%) asked a question specifically including one or the other 
of these terms. 
Automatic Record Check 

Most jurisdictions include somewhere on the application a 
statement that the data would be checked with the police and other 
sources. Some included this statement in the same box as or immediately 
after the criminal record inquiry, thus possibly suggesting greater 
emphasis upon criminal record as an employment factor. Included 
in these inquiries are those which state that fingerprints are 
required or in which the applicant is asked if he objects to 
being fingerprinted. This statement and question may have a 
particularly chilling effect upon the applicant with a prior record, v 
One state, 11 counties (6%) and 11 cities (5%) have such statements. 
Record Not Automatic Bar 

Few jurisdictions include in the question inquiring about past 
criminal records a statement that a prior record (be it arrest or 
conviction as the case might be) does not automatically disqualify 
the applicant from consideration. A few state that each case is 



282 



13 



considered on its individual ner its . Probation officers and 
some ex-offenders in several jurisdictions indicated that the 
question alone might discourage an applicant with a record 
from filling out the form. 

Five states (11% of those tabulated), 8 counties (5%) and 
8 cities (4%) had such statements. The Institute believes that 
there should be no automatic exclusions from employment, and that 

such a statement should always be part of the job application form. 
SPECIFIC EXCLUSIONS 



A) Traffic : Some jurisdictions, in asking about the prior record, 
include a statement such as "do not include minor traffic violations." 
Most do not detail what constitutes a "minor" offense but the 
following provisions indicate the attitude some jurisdictions 
take: 

Solano County, California; High Point, North Carolina; Bay City, 
Michigan -- applications state that drunken driving, reckless driving, 
and hit-run driving are not minor. 

Humboldt County, California — application authorizes exclusion 
of traffic offenses involving faulty equipment, parking, hand or 
traffic signals, signs or speeding. 

San Bernardino County, California — application authorizes 
exclusion of minor traffic violations such as parking or speeding 
unless a warrant was issued for the applicant's arrest. 

Cranston, Rhode Island — application requires inclusion of 
police fines other than parking. 

Flint and Kalamazoo, Michigan; Miami Beach and West Palm Beach, 
Florida -- applications require inclusion of moving traffic violations. 



283 



14 



In some cases indication of the point for drawing the line 
is revealed in inquiries as to fines paid and which fines to 
exclude. Four counties (27% of those tabulated) and six cities 
(3%) provide exclusions based in terms of fines. Often the 
fines are expressed in terms relative to traffic offenses. 
For example: 

Clark County, Nevada; Santa Barbara County, California; 
Omaha, Nebraska -- application authorizes exclusion of traffic 
offenses with fines under $25.00. 

Lorain County, Ohio — application authorizes exclusion of 
traffic fines under $75.00. 

Washington, D.C. -- application authorizes exclusion of traffic 
fines under $30.00. 

Of those applications which expressly provide that "minor 
traffic offenses" are to be excluded (but not including those 
phrased in terms of fines, however denominated) the following 
results occurred: 

A total of 26 states (57% of those tabulated) , 81 counties 
(48%) and 88 cities (39%) include such questions. The Institute 
believes that the inclusions and exclusions should be more specific, 
and that some uniform standard should be used as a guideline. 
B) Juvenile Offenses : Few jurisdictions advise the applicant 
to exclude juvenile offenses. Occasionally the question is termed 
in reference to a specific age. Three cities used age 16, twelve 
cities (ten from Massachusetts where state law governs) use age 17, 
and two cities use age 18 as cutoff points. Two counties use 
age 16 and one uses age 18. One state uses age 21. 



284 



15 



In total, seven states (15% of those tabulated) , 5 counties 

(3%) and 17 cities (8%) use some form of terminology to exclude 

juvenile offenses. 

C) Time Limit on Offenses : Few jurisdictions advise the applicant 

not to include offenses occurring beyond a stated period of time in 

the past (juvenile offenses not being included here) . Massachusetts 

(the only state with a time provision) provides the following by 

statute and in the application: 

It will not be necessary for you to furnish any informa- 
tion of arrest or conviction of drunkenness, simple assault, 
speeding, minor traffic violations or disturbance of the 
peace if such arrest or conviction occurred more than ten 
years ago. A complete statement of your case may be 
obtained upon application to . . . .If you have a record 
which has been pardoned, such record should be stated, and 
a copy of the pardon should be attached to this application. 

Cumberland County, Pennsylvania (the only county with a 
time provision) asks if the applicant has been arrested during the 
last five years, ever been convicted of a felony or convicted of 
any crime in the last two years. 

The cities of Cambridge, Holyoke, Lynn, Maiden, Medford, New 
Bedford, Somerville, Springfield, Quincy, and Worcester, Massachusetts 
(which are all governed by statute) exclude the same minor offenses 
if they occurred ten years previously. 

D) Sealed Record Exclusion ; Only one jurisdiction specifically mentions 
sealed records. Los Angeles County, California, advises applicants 
to specifically include juvenile offenses unless sealed. It should 
be noted that Los Angeles, California, requires the inclusion of 
offenses dismissed or "legally cleared from your record." 



Sealing generally is a method whereby an official record is 
physically secured against unintentional observation or where 
some form of notice is made to inform record custodians that 
disclosure of the contents is not to be made without a court order. 



285 



16 



SPECIFIC INCLUSIONARY PROVISIONS 

A) Traffic: Occasionally a jurisdiction advises the applicant 
to include minor traffic violations. There were no states, four 
counties (2% of those tabulated) , and 37 cities (17%) which sought 
such information. 

IJ Juvenile Offenses; Several jurisdictions specifically advise 

the applicant to include juvenile offenses. Occasionally it was 
phrased such as the inquiry of Garden Grove, California, where 
the applicant was to include an arrest "at any time in your life." 
(The same terminology was also used by Pomona and San Bernardino, 
California) . Columbus, Ohio requires the inclusion of juvenile 

and adult records. Eight counties (5% of those tabulated), and 

* 

17 cities (8%)see)c such records. 

C) Defendant in Civil Case: Three states (7% of those tabulated), 
six counties (4%) and four cities (2%) aslc if the applicant has 
ever served as a defendant in a civil case. 
Miscellaneous information 

Some of the applications make a statement near or in their 
inquiry about a criminal record as to whether the applicant is 
willing to be fingerprinted or take a lie detector test, or it is 
stated near or in the record inquiry that an automatic check of 
Police or FBI will be made. It is believed that this procedure may 
indicate a restrictive approach to those persons with records. 
(It should be noted that most applications state somewhere that a 



Sea chart on pp. 27-31 for identification. 



286 



17 



routine taking of fingerprints will be made, or there may be a general 
statement elsewhere that routine checks may be made. The focus of this 
survey was such statements made relatively near to the actual information 
regarding past records) . 



287 



18 

Findings and Recomniendations 

1. Finding — A majority of jurisdictions ask questions pertaining 
to arrest records. 

Recommendation — See Chapter 8, Arrest Records and the recoimnenda- 
tion therein for federal action to prohibit any request for arrest records 
on job applications and restricting the release of arrest records by 
federal, state and local agencies or police departments. 

2. Finding — Few jurisdictions include in the question concerning 
criminal records any statement that such a record would not automatically 
disqualify the applicant from consideration. 

Recommendation — Every job application form should contain a 
statement clearly indicating that conviction of a crime does not automa- 
tically disqualify an applicant for a job. This statement should be 
contained in the same box as that in which the question about a record is 
asked. 

3. Finding — Many jurisdictions exclude certain kinds of crimes 
by stating in the job application form that the applicant should not 
include minor crimes, certain kinds of traffic offenses, or crimes for 
which the fine was under a specified amount. The language used in the 
different jurisdictions is quite different, as are the amounts, and it is 
difficult for any applicant to determine in all cases just what answer 
was or was not required. 

Recommendat ion — The recommendation here must be keyed in with the 
recommended model expungement and annullment statute suggested in Chapter 5, 



288 



19 



Expungement and Annullment of Criminal Conviction Records. Under 
this statute the following language is suggested: "Have you ever 
been convicted of a crime which has not been annulled or expunged 
by a court?" 

There must also be guidelines for a standard to determine 
where the line should be drawn for minor offenses and youthful 
offenders. One approach might be to advise the applicant to 
exclude all offenses where no court appearance has been made 
and also those cases where the person elected to forfeit collateral 
under a certain amount. This usually occurs with very minor 
crimes. Quite frequently individuals elect to forfeit low 
collateral because of the major inconvenience and expense to 
them if they have to make further appearances. In cases where 
a courtroom appearance is made and there is a finding of guilt 
then obviously the person would have to answer because it is 
a conviction. Where the person is acquitted or the charges 
are dismissed then under the recommendation prohibiting an 
arrest record question, the person would not be required to 
answer . 

The following is the wording used on U.S. Civil Service 
Commission Standard Form 171. 

29. Have you ever been convicted of an offense against 
the law or forfeited collateral, or are you now under 
charges for any offense against the law? (You may omit: 
(1) traffic violations for which you paid a fine of $30.00 
or less; and (2) any offense committed before your 21st 
birthday which was finally adjudicated in a juvenile court 
or under a Youth Offender law.) 

30. While in the military service were you ever convicted 

by general court-martial? 

If your answer to 29 or 30 is "Yes", give details in Item 
34. Show for each offense: (1) date; (2) charge; (3) place; 
(4) court; and (5) action taken. 

The Institute suggests two improvements in this form: 



289 



20 

1) Require a forfeiture of collateral to be more than [$30]; and 

2) Delete the word "traffic" so that any violations involving 
funds of $30 or less would be omitted. 

4. Finding — Very few jurisdictions advise the applicant to 
exclude juvenile offenses. Some states use chronological age as a cut- 
off point, rather than the legal designation of a juvenile. 

Recommendat ion — No juvenile record of any sort should be asked 
for in a job application form. In fact the applicant should be advised 
to specifically exclude any juvenile adjudications. The exclusion of 
juvenile offenses should be keyed to the legal designation as a juvenile 
in whatever jurisdiction the child was processed, rather than using age 
as a factor. The reason for this recommendation is that in many juris- 
dictions juveniles can be waived to adult court if a particularly serious 
crime is involved. A conviction of a crime may result and this should 
be treated as any conviction. The question asked in Standard Form 171 
commends itself. 

5. Finding — Few jurisdictions exclude offenses which had been 
committed a substantial time ago. Applicants in some circumstances may 
be excluded because of old criminal records which have little value in 
determining the applicant's present status. *■ 

Recommendat ion — The model statute on expungement and annul Iment 
of criminal conviction records contains provisions for the expungement 
of the conviction record after certain periods of time. Should such a 
statute be in effect it would automatically provide a time frame after 



290 



21 



an applicant would not have to answer questions as to crimes committed 
a long time ago. If this provision is not included the criminal record 
inquiry on application forms should clearly define a time beyond which 
criminal records need not be admitted. For example, "Have you ever been 
convicted of a crime which has not been annulled or expunged by a court 
within the past two years?" 



291 



22 



Chapter 2 
State Juvenile Policies and Their Effectiveness 

If a state may be said to have a "policy" in a given field, an 

initial point for determining that policy would be in studying statu- 

* 
tory pronouncements. Most states have provided by statute that minors 

should be treated more leniently than adults. In theory most courts 

have tept in mind the policy of treating juveniles less severely than 

adults for a given offense. The charts at the end of this chapter 

spell out state statutory procedures and compare them with information 

sought on job applications by cities and counties within the state. 

Where a jurisdiction specifically seeks information regarding a 

juvenile record, this may contradict state policy if the state has 

certain statutes. In all cases where a county or city sought this 

information the state had at least one of three statutes (juvenile 

proceedings will not result in a minor being determined a criminal; 

juvenile proceeding is not considered a conviction; or juvenile 

proceeding is not a disqualifying factor for civil service) . In Florida, 

Ohio, Texas and Virginia, where subordinate jurisdictions sought such 

information, all three statutes were in effect. 



* Appendix C summarizes in chart form relevant juvenile st=>tutory 
provisions for all states. 



** See pp. 28-31 



292 



23 

Where a jurisdiction requires job applicants to disclose arrest 
records without including a statement that juvenile offenses should 
not be included, the application form would appear to be in derogation 
of any existing state policy intended to protect juveniles. For 
example, of the twenty-six states seeking arrest record information, 
twenty-four have statutes providing that juvenile records may not serve 
to disqualify the applicant for civil service. Similarly, fifty counties 
and ninety-two cities ask for arrest information without excluding 
juvenile offenses despite the fact of being subject to a state statutory 
provision providing applicants may not be disqualified for juvenile 
offenses. 

All but three states, Hawaii, Iowa and South Dakota, have passed 
at least one of the three statutes. Hawaii handles juvenile matters in 
family court without express statutory policy. The Iowa statute pro- 
vides expressly that juvenile records are not confidential. South Dakota 
has a statute requiring a court order to inspect juvenile records and an- 
other statute requiring a court order before any release can occur. 

All states except Iowa have chosen to create a policy of regarding 
juveniles offenses vastly different from adult offenses. But the coop- 
eration of subordinate jurisdictions with the spirit of that policy, 
if not the law, has been poor. Only 15% of the states, 3% of the counties, 

and 8% of the cities expressly follow this policy by informing juveniles 

* 
on job application forms not to reveal juvenile adjudication. While 



* In Chapter 1, Job Application Forms, we have recommended that job 
application forms specifically advise applicants not to include 
juvenile records. 



293 



24 



seeking "conviction" information is more protective than seeking "arrest" 
information (which would include juvenile arrests) , only 45% of the 
states, 25% of the counties, and 17% of the cities limit their inquiries 
to the conviction. Granted, one state, 19% of the counties, and 5% of 
the cities seek no information at all, but the total picture is far from 
apparent compliance with announced policy. 

Most jurisdictions which have statutes permitting or limiting the 
inspection of juvenile records require a court order before the record 
can be looked at (See Appendix C. in one jurisdiction which received 
an on-site inspection the court had delegated this authority to the 
juvenile probation department which routinely made the records available 
to employers (Nashville-Davidson) . Furthermore, adjudicated juveniles 
are advised upon their release to reveal their records when applying for 
employment. (see page 124 ) In Hennepin County, Minnesota, under similar 
state statute, the policy was quite different. The juvenile probation 
department refused anyone access to juvenile records unless they obtained 
a court order. It was their policy to oppose the release of the record 
to anyone. Few states have statutes authorizing the destruction of 
juvenile records. 

It was brought to the Institute's attention that in California one 
juvenile, against whom charges were subsequently dismissed, obtained a 
court order sealing the arrest record. In making a later application 
for employment with a business firm, this person noted on the application 
there were no prior arrests, this being expressly provided by California 



294 



25 

Penal Code Sec. 851.7. Nevertheless, the employer was able to obtain 
the arrest record and the individual was fired for having falsified the 
employinent application. 

Despite juvenile statutes relating to the destruction of records 
and inspection of records, practices and customs of a jurisdiction may 
determine how open a juvenile record is to employers and others. If 
the real intent of juvenile codes is to be observed then no individual 
should be burdened with the obstacle to job finding which a juvenile 
record can become. There should be a state statute flatly prohibiting 
the divulgence of a juvenile record for purposes of obtaining a job, 
licensing, bonding, or any civil right or privilege. 

Carrying this approach a step further the Institute believes that 
after a reasonable period of time subsequent to a juvenile adjudication 
the record should be automatically destroyed and obliterated at all 
levels of the court system and in whatever government agency it may be 
similarly recorded. Juvenile hearings are held in private, allegedly to 
protect the juvenile. Of what use is such protection should the record 
thereafter be made public and kept on the books indefinitely, subject 
to use and abuse so long as it survives. 

Somewhere, at some point in time, there must be an end to the 
potential impact of juvenile records on a person's life. The Institute 
is therefore recommending a model use of juvenile record statute which 



295 



26 

would require sealing and prohibition on its use except for certain 
limited purposes, and calls for its destruction and obliteration after 
a certain period has passed. It may be that some jurisdiction would 
wish to condition this destruction and obliteration on the interval 
between the adjudication and destruction being clear of further juvenile 
or criminal proceedings. 



i^y But in In Re Gault , 387 U.S. 1, 24-25 (1967) the court stated: 

"In most States the police keep a complete file of juvenile 
'police contacts' and have complete discretion as to dis- 
closure of juvenile records. Police departments receive re- 
quests for information from the FBI and other law-enforce- 
ment agencies, the Armed Forces, and social service agencies, 
and most of them generally comply. Private employers word 
their application forms to produce information concerning 
juvenile arrests and court proceedings, and in some jurisdic- 
tions information concerning juvenile police contacts is 
furnished private employers as well as government agencies." 



296 



27 



STATE JUVENILE POLICY CHARTS 

The following chart attempts to compare announced state juvenile 
"policy" with civil service job application forms used within that state 
by state, county, or local civil service systems. An "x" under one 
of the first three columns indicates the presence of a state statute 
indicating a juvenile offender is not to be regarded as a "criminal", 
that a juvenile adjudication is not to be regarded as a"conviction" , 
or that an adjudication is not to be considered disqualifying for 
civil service employment. Citations to these statutes are given in 
the chart in Appendix C . Data taken from the state civil service 
application form and those subordinate counties and cities with 
qualifying population totals are tabulated to the right. The questions 
regarding criminal records and whether or not the applicant is advised 
to either include or exclude a juvenile record is considered state by 
state. See Appendix B infra for total analysis of job application 
forms. It is the opinion of the Institute that a state which 
announces a policy of leniency towards juveniles violates that policy 
if either of the following occurs: (1) any job application form within 
the state seeks information concerning any record not limited to a 
"conviction" and (2) any job application form which fails to explicitly 
advise applicants not to disclose juvenile records. 

Those counties and cities whose job application forms specifically 
advise applicants to include juvenile offenses within the given state 
are enumerated. 



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301 



32 



Findings and Recommendations 

1. Finding -- Most states provide by statute that juveniles 
should not be treated as criminals. Yet job application forms fail 
to distinguish between adult and juvenile applicants. 

Recommendat ion — Civil service job application forms should state 
expressly that juvenile records need not be revealed. The state govern- 
ment should also attempt to insure that local governments are provided 
with policy statements and guidelines to enable them to adhere to 
announced state policies. See the recommendation concerning a model 
job application question on pp. 

2. Finding — Juvenile records in some states are available to 
employers, public and non-public, through both formal and informal 
channels, despite state statutes announcing a policy of non-disclosure. 

Recommendat ion — Except for carefully framed exceptions state 
statutes should prohibit the releasing of juvenile records where the 
information sought is related to jobs, licensing, bonding, or any civil 
right or privilege. See Model Use of Juvenile Record Statute p. 34. 

3. Finding — Juvenile records are retained long after the info^p- 
mation contained has become obsolete. 

Recommendat ion — After a reasonable period of time these records 
should be automatically destroyed wherever recorded. Furthermore, 
studies should be undertaken to determine ways in which the number of 
copies of each record or references to a particular juvenile's name 
might be recorded so that all copies may be systematically destroyed. 



302 



33 



The statute should explicitly require that juveniles be informed of 
these procedures and actions. Such information should include an 
explanation of how their status relates to applications for jobs, 
licensing, bonding and whether or not any adknowledgement of a juvenile 
record must be made. See the model use of Juvenile Record Statute 
on p. 34. 



303 



34 



* 
Model Use of Juvenile Record Statute 



Section 1 (a) . In all cases wherein a juvenile adjudication has been 
entered against a juvenile, the court shall order the court 
records sealed. Except under the following circumstances, 
after such sealing the records shall not be released. 

(1) inquiries received from another court of law; 

(2) inquiries from an agency preparing a presentence report 
for another court; 

(3) inquiries from law enforcement agencies where the request 
for information is related to the investigation of a crime or 
a position within that agency; and 

(4) inquiries from an agency considering the person for a 
position immediately and directly affecting the national 
security. 

Information about the sealed record may not otherwise be released 
when the request for information is related to an application for 
employment, license, holding or any civil right or privilege. 
Responses to such inquiries shall not be different from responses 
made about persons who have not been adjudicated a delinquent, 
(b) Records of juvenile proceedings where adjudication 
of delinquency was not entered shall be sealed. Such records 
may not be released under any circumstances. 



This proposed statute is limited to the use and destruction of the 
juvenile record. It does not purport to include provisions 
which remove juvenile adjudications from the sphere of a 
criminal conviction . Existing statutes which effectively 
protect the confidentiality of juvenile records may lessen 
the necessity for section 1 of this proposed model statute. 



304 



35 



Section 2. No later than two years after a juvenile proceeding, 

and no subsequent juvenile adjudication or criminal conviction 
has occurred, the entire file and record of such proceedings 
shall be destroyed and obliterated by order of the court. This 
destruction shall include any and all references to the case 
wherever recorded. The order shall apply to all government 
agencies, courts, judges, magistrates, peace officers, or other 
similar officers and to private agencies. Notice of such 
order shall be sent to all agencies and organizations which 
the court has reason to believe may have obtained information 
about the juvenile record. All such agencies and organizations 
shall notify the court of action take in response to the 
order. Responses to requests for record information after 
such destruction shall be worded in the same manner as responses 
for information about individuals where no record had ever 
existed. 

Section 3. Juvenile courts and institutions exercising 

jurisdiction over any juvenile shall inform the juvenile, 
his parents or guardian, in writing of rights relating to 
the sealing of his juvenile record. Where the record has 
been destroyed the court shall attempt to notify the juvenile, 
his parents or guardian of such destruction and its effect 
on his legal status. The information in these communications 
shall be in clear and non-technical language. 



305 



36 



Chapter 3 

Civil Service Statutes and Rules 
General Statutory Provisions 

As are juvenile policies, nearly all state employment 
practices are governed by statute. Appendix D gives details of 
a survey of state civil service statutes made to determine what 
standards have been provided to guide public hiring authorities as 
to persons with criminal records. The statutory survey was limited 
to the classified civil service which comprises the bulk of public 
employees . 

The statutes in Appendix D under "hiring provisions" speak 
in terms which indicate the purpose of the civil service system. 
Most indicate that employment is based upon merit, ability, or 
fitness and offer no specific guidelines for hiring authorities. 
"Exclusionary provisions" establish categories deemed by the 
legislature to render applicants unfit for public employment. 
These provide the most significant obstacles to employment of persons 
with criminal records, both in those calling for mandatory exclusion 
and those which authorize exclusion by the hiring authority. 
On-site interviews and study indicates that as a practical matter 
employers generally will not hire persons with criminal records 
if there are other qualified applicants without such records. 

Approximately ene-third of the jurisdictions provide that 
an incorrect statement in application forms is grounds for rejecting 
an applicant. Persons with criminal records may not admit to it 
because of the fear, frequently justified, that it will act as a 



306 



37 

barrier to their employment. 

Nearly one-third of the jurisdictions (perhaps 40% of the 
cities) have authorization to exclude applicants deemed "unfit". 
Depending upon the attitudes of civil service staff towards 
persons with criminal records, such provisions could be used to 
eliminate applicants with criminal records who are otherwise 
qualified for employment. Approximately one fifth of the jurisdictions 
exclude persons guilty of infamous or notoriously disgraceful conduct. 
While this phraseology is less susceptible to misinterpretation than 
"unfitness", the term "guilty" does not necessarily imply, in 
layman terms, "conviction" in legal terms. Hence an arrest may be 
deemed sufficient in some jurisdictions; in yet others reports of such 
behavior may suffice. Moreover, only a few jurisdictions describe 
what is to be considered as infamous or notoriously disgraceful. 

Approximately one tenth of the states and 20% of the counties 
and municipalities provide for the specific exclusion of individuals 
for criminal offenses. The terminology varies; some statutes 
provide for rejection of applicants found not law-abiding, or who 
had an unsatisfactory arrest record, while others reject persons 
found guilty of or convicted of a crime. At least the two former 



"Many tales suggest that the probability of getting a job 
is reduced if information on the criminal record is volunteered 
in applying for employment, but other accounts suggest that 
men generally will be retained in employment, despite company 
policy against hiring ex-convicts, if they establish a good 
work record before their criminal record is revealed." 
Glaser, The Effectiveness of a Prison and Parole System , 234 
(Abridged Edition 1969) . 



307 



38 



phrases may prove to be obstacles to persons with arrest records 
while the latter two suggest a stricter standard. None, however, 
provide for the separation of minor offenses from severe offenses 
or discuss any relationship between the offense and the position 
sought. Finally, several states provide for the rejection of 

individuals found "not qualified." This could imply 

that the applicant lacked adequate training or education for the 

position sought; such vague wording, however, provides a broad 

umbrella under which other factors might be considered. 

Firing 

Virtually all jurisdictions provide for a period of probationary 
employment lasting from three months to a year. With few exceptions, 
employment during this period is considered to be at the pleasure 
of the hiring authority; an employee may be dismissed without the 
requirements applicable to permanent employees (such as a hearing) . 

Standards applicable to permanent employees provide in 
approximately half the states and municipalities that an individual 
may be fired for misconduct or for cause. Rarely is there any 
statutory indication of what is included in these terms. Approximately 
half of the county provisions indicate, without providing guidelines, 
that employees may be dismissed. Approximately 20% of the states 
and 15% of the counties and municipalities provide that persons 
may be dismissed "for the good of the service." No standards are 
provided to indicate what constitutes "the good of the service." 
Five percent of the state and local provisions specifically indicate 
that an individual may be fired for a misstatement in his original 
application. 



308 



39 



Approximately 14% of the states and 6% of the municipalities 
contain provisions expressly declaring that an individual may be 
fired for criminal conduct. Many of the jurisdictions with this 
provision use the word "conviction", but also use the descriptive 
word "crime" without distinguishing between major and minor offenses. 
Some provisions use the word "violation" which could be construed 
as including an arrest. 
Judicial Interpretations 

The above provisions take an added meaning when analyzing several 

typical cases which uphold the language and standards found in so 

many statutes. In Re Mosby's Appeal , 360 Mich. 186, 103 N.W. 2d 

462 (1960) held that a dismissal "for cause" was valid even though 

the activity of the employee was not specifically proscribed by 

the statute. In this case the appellant had, when applying for 

his position ten years before, failed to reveal a felony conviction. 

On this basis he was discharged. There was no finding that he had 

performed unsatisfactorily during these 10 years. The court held 

that his dismissal was valid on the basis of an "omnibus clause" 

in the rules: 

"The following are declared to be causes for suspension, 
demotion or removal of any employee, though charges may be 
based upon causes other than those herein enumerated . . . 

In the case of Sumeracki v. County of Wayne , 354 Mich. 377, 

92 N.W. 2d 325 (1958) the court held that a suspension of an 

employee charged with a criminal offense was valid even though the 

charges were subsequently dismissed. The court declared: 

"However harsh the present rule may be, all were cognizant 
of it when they started work. In any case such rules 
reflect an awareness that public policy may exclude not 
only a convicted felon from civil service employment, 
but also one accused of a felony." 






309 



40 



Statutes Authorizing the Hiring of Individuals with Records 

Only a few jurisdictions have enunciated a policy of not 
automatically excluding applicants with criminal records. Md. Ann. 
Code §64A-19 1957 (Supp. 1970) declares that such persons, if 
otherwise qualified, shall not be rendered ineligible solely by 
reason of the conviction. The hiring authority is expressly given 
permission to consider the conviction in making his final 
determination . 

Mass. Gen. Law Ann. §31-17 1966 (Supp. 1971) provides 
that no person convicted of other than enumerated minor crimes, 
such as parking offenses, may be appointed or employed within 
one year of his conviction. The Personnel Director is allowed 
to appoint persons within a year of conviction where their 
offenses are comparatively minor, such as where the individual 
is fined less than $100 or sentenced to less than six months. 
Massachusetts also provides in §31-13 that applicants do not have 
to include any adjudications occurring before the applicants 
seventeenth birthday. 

N.J. Stat. Ann. §11:9-6, 1960 (Supp. 1970) indicates that an 
individual who would otherwise be excluded, because of false 
statements in his application, dismissal from public service, 
or having been "guilty" of a crime, may be employed "if it appears" 
that the individual "has achieved a degree of rehabilitation 
that indicates that his or her employment would not be incompatible 
with the welfare of society and the aims and objectives to be 
accomplished by the agency . . . . " 



310 



41 



The most explicit statute is found in 111. Ann. Stat. §127-63bl08b. 1, 
1967 (Supp. 1971), which states: "No person with a record of mis- 
demeanor convictions except [enumerated crimes], or arrested for any 
cause but not convicted thereon shall be disqualified from taking 
such examinations or subsequent appointment, unless the person is 
attempting to qualify for a position which would give him the powers 
of a peace officer . . . . " The enumerated offenses included sex 
offenses, firearm violations, obstruction of justice, resisting 
a peace officer, and other similar offenses. 
Civil Service Rules and Regulations 

Most states have promulgated civil service rules. Most often 
it is merely a set of practical guidelines embodying the policies 
or standards as established by the State's statutes. A comparison, 
state by state, of statutory policies with those evidenced by the 
rules found that seven states appear to have softened their position 
in the rules; only one appears to have ignored the state policy, 
and then only indirectly. 

Alabama, Kentucky, Missouri, New Jersey, New Mexico, Tennessee, 
and West Virginia appear to place tighter control on discretion 
which might be exercised by a hiring authority in excluding applicants. 
In each case the state had an exclusionary provision which would 
permit, generally, the exclusion of a person deemed "unfit" without 
defining what factors of "fitness" might be considered. 

The rules promulgated by the civil service in each case 
eliminated that wording, generally adding a more detailed provision 
as to what would authorize exclusion, such as conviction of a felony 
or crime of moral turpitude or infamous or notoriously disgraceful 
conduct. Kentucky also improved its standards for 



311 



42 



firing by eliminating a provision which provides for firing 
an employee without specifying standards and adding a provision 
that an employee could be fired for misstatements in his 
application. 

Indiana's rules do not appear to carry out in full statutory 
requirements. Indiana Ann. Stats. 60-1335 requires as a condition 
precedent to firing an employee, a statement of the reasons therefore 
in writing. The rules, however, at Section 12-3 (A) state, "An 
appointing authority may dismiss a regular employee and terminate 
his employment immediately, by presenting the employee with a 
written notice of suspension without pay pending dismissal ten 
days following." There is no requirement within the section on 
dismissal requiring that the employee be given a statement in 
writing of the reasons for his dismissal . 

Several jurisdictions have promulgated rules and regulations 
which provide relatively exacting guidelines. For example, 
Nevada provides that persons convicted of crimes against property 
shall not be considered for positions involving merchandiser persons 
convicted of crimes against persons will not be considered for 
positions involving the care or custody of individuals; persons 
convicted of crimes involving "violations of trust (such as forgery 
or embezzlement) " will not be considered for fiscally related 



312 



43 



positions; and persons convicted of serious traffic infractions shall 
not be considered for positions requiring vehicle operations. 

The approach used by St. Paul, Minnesota in their regulations 
is based upon a time-delay factor. For example, persons convicted 
of a felony may not be admitted to an examination within five years; 
after a second conviction, ten years, etc. For misdemeanors the 
delay is six months for the first offense in any one year, a one 
year delay for two offenses in any one year, and a three-year 
delay for three or more offenses within any five-year period. 



313 



44 



Findings and Recommendations 

1. Finding -- There are great variances in civil service 
statutes. Many statutes cite criteria and standards which in reality 
offer almost no guidelines to civil service commissions and personnel 
directors. Many statutes use words such as merit, ability, or fitness 
as guidelines. On the other hand, exclusionary provisions use such 
words as "unfit", "infamous", and "non law-abiding". Yet other 
statutes specifically exclude individuals who are arrested or 
convicted of crimes. 

Very few jurisdictions follow a statutory policy of not 
excluding applicants with criminal records and in these few 
jurisdictions the statutes provide slight amelioration of the affect 
of a criminal conviction on a job applicant's chances of obtaining 
civil service employment. They either speak in weak terms of not 
excluding such individuals or provide numerous exceptions to the 
non-exclusionary rule. Most such statutes make it clear that the 
crime may be considered by the personnel director or the hiring 
agency. 

Recommendation — The Institute believes that a more positive 
expression of policy should be contained in the basic civil service 
statute for the state, and that where state law governs hiring 
practices in local jurisdictions, such a statute should similarly 
apply. The actual wording of a statute should be preceded by a 
statutory preamble in which the legislature finds that a policy of 
rehabilitating offenders best protects society by preventing future 
crime, and that to be consistent with efforts at rehabilitation 
government should be a source of employment. 



314 



45 



Following this expression of legislative intent there should 
be an express provision which provides that no crime is an automatic 
bar to obtaining employment with government. While discretion 
must be left with the personnel department or hiring agency, 
as the case may be, and a crime which has not been expunged 
should be considered along with many other factors, the statute 
should make clear that it is the policy of the state to encourage 
applications of persons who have criminal records. 

The Institute is proposing a model civil service criminal 
record statute, recognizing that variations may be necessary in 
different jurisdictions. We are not attempting to draft a model 
set of rules and regulations. We do recommend that appropriate 
organizations such as the Council of State Governments, National 
League of Cities, National Association of Counties, National Civil 
Service League, International City Managers Association, and similar 
groups attempt to draft model rules and regulations consonant with 
the model statute the Institute is proposing. 

2. Finding — A number of states have promulgated civil 
service rules, generally in accordance with the statutes creating 
the civil service organization. As previously pointed out, however, 
not all states adhere strictly to the letter and spirit of the law 
in their jurisdiction. 

Recommendation -- The Institute believes that the promulgation 
of clear rules and regulations and their wide distribution, accompanied 
by discussions of their meaning, is a high priority recommendation. 
Nothing could be more destructive than a policy which is not 
implemented because of a communication failure, or a lack of 
policy which results in uneven and unequal implementation of 



315 



46 



state law. In either case how a person with a record is treated 
in the job screening process could well depend on circumstances 
over which he has no control. 

The rules and regulations should clearly reflect the requirements 
of the statute, and the rulemaking body should, in amplifying upon a 
statute, give the most favorable interpretation to the meaning of the 
statute. This in fact has apparently occurred in seven states. 

The rules and regulations should be distributed and explained 
on a periodic basis to all who have any responsibility for hiring 
and should also be made available to job applicants. As pointed 
out in Chapter 7, where site visits are discussed, some jurisdictions 
have no written policies concerning the hiring of offenders, and in 
one case where such a policy was in existence, it apparently had not 
been made available to hiring authorities or job applicants. 



78-242 O - 72 - 21 



316 



47 



Model Civil Service Criminal Conviction Statute * 

Section 1. The [name of legislature] finds that the public is best 
protected when criminal offenders are rehabilitated and returned 
to society prepared to take their places as productive citizens. 
The [name of legislature] also finds that the ability of returned 
offenders to find meaningful employment is directly related to 
their normal functioning in the community. It is therefore the 
policy of [name of state] to encourage all employers to give favor- 
able consideration to providing jobs to qualified individuals, 
including those who may have criminal conviction records. 

Section 2. No person with a criminal conviction record shall be dis- 
qualified from taking open competitive examinations to test the 
relative fitness of applicants for the respective positions. Per- 
sons with criminal conviction records shall be entitled to the 
benefit of all rules and regulations pertaining to the grading and 
processing of job applications which are accorded to other applicants. 
In considering persons with criminal conviction records who have 



* The civil service conviction statute does not grant relief to persons 
arrested but not convicted. Some states have statutes or rules pro- 
viding some form of relief for such persons. The Institute antici- 
pates this model statute being coupled with the recommendation that 
no arrest record shall be released for purposes relating to employment, 
license, bonding, or any civil right or privilege. (Chapter 8) This 
would thus deny civil service access to such records. Should an 
arrest record statute not be adopted, then civil service provisions 
should include standards providing for employment of persons arrested 
but not convicted. 



317 



48 



applied for employment the [hiring official] shall consider the 
following: 

a. The nature of the crime and its relationship to the job for 
which the person has applied; 

b. Information pertaining to the degree of rehabilitation of 
the convicted person; and 

c. The time elapsed since the conviction. 



318 



49 

Chapter 4 
Licensing and a Criminal Record 

This study was not originally intended to examine licensing 
statutes and their application. But it became obvious that this 
was an important employment sector in which state government 
played a major role through statutory guidelines and various 
occupational boards and commissions. The following material is 
introductory to the problem which merits detailed examination 
and analysis. As part of a recent grant to the American Bar 
Association a sub-grant has been made to the Georgetown Insti- 
tute of Criminal Law and Procedure to conduct an extensive survey 
of licensing statutes and recommend model legislation in this area. 

That crime and violence are often related to unemployment is 
well established. For example, the National Advisory Commission 
on Civil Disorders found significant indication that those who 

were unemployed were more likely to participate in riots than those 

1/ 
with employment. The same was found with those employed inter- 
mittently, or in low status positions, or in unskilled jobs — 

2/ 
regarded as being below their level of education and ability. 

The relationship between licensing and employment is signi- 
ficant; the 1960 Census found that more than 7 million people were 

working in occupations that were licensed in one or another juris- 

3/ 
diction and that altogether there are approximately 2,800 statu- 



319 



50 



4/ 
tory provisions requiring occupational licenses. The charts on 

pages 54-55 give some indication where these requirements exist, 
both geographically and occupationally. How seriously the exis- 
tence of a criminal record affects one's potential for being 
licensed cannot be accurately determined without an initial 
detailed examination of the statutes, followed by a look at 
administrative practices. The data compiled here briefly high- 
lights some factors in the problem ujson which future studies 
could expand. 

Appendix E lists major occupations with the number of states 
requiring a license for that occupation. The data is approximate 
due to the lack of uniformity in occupational classifications 

from state to state; nevertheless, there are well over 4000 occu- 

5/ 
pation licenses required in one state or another. 

One survey of statutes found that as many as half may be 
affected by the existence of a criminal record. Over 1050 li- 
censes required "Good Moral Character" as a condition precedent. 
This requirement, which is often established without any guide- 
lines of what constitutes such evidence, has been reported as 
having an adverse effect on many potential practitioners, especi- 
ally the urban poor. 

A "felony" record was clearly enumerated as being grounds for 
denial of a license in 225 occupations, and a record of felony with 
moral turpitude in another 27. A "misdemeanor" record affected 15 



320 



51 



occupations while a misdemeanor record involving moral turpitude 
affected 24. A "crime" record involving moral turpitude was suf- 
ficient in 198 occupations and in 116 an enumerated crime was 
specified. It is interesting to note that for all offense categor- 
ies (excepting the requirement of "good moral character") nearly 
twice as many jurisdictions prohibit a renewal of the license than 
initially deny it. 

Appendix E indicates that there is a lack of substantial unifor- 
mity among the states for the requirements necessary for being li- 
censed. Furthermore, many statutes are vaguely worded. They do not 
always specify whether a conviction or merely an arrest is sufficient 
to restrict the license, and others are less than fully descriptive 
of what crime or crimes are considered relevant to the occupation in 
question. 

Rehabilitation of criminal offenders is related to their success 
in obtaining and retaining satisfactory employment. Juveniles as 
well as adults are affected. The President's Commission on Law 
Enforcement and the Administration of Justice reported that, "The 
delinquency label may preclude membership in labor unions or parti- 
cipation in apprenticeship training. Licensing requirements for 
some occupations, such as barbering and food service, may act as a 

2/ 

bar to entry for those with a record of delinquent conduct." 
Where barriers are unrealistic, unnecessary, or where they bear no 
relation to the job in question, ex-offenders become increasingly 



321 



52 



bitter and may return to crime, or resort to alcohol or drugs. 

Because of this, the Commission recommended the reduction of 

"barriers to employment posed by discrimination, the misuse of 

8/ 
criminal records, and maintenance of rigid job qualifications." 

Another problem inherent in the widespread diversity of occu- 
pational licensing and the lack of uniformity of treatment of 

criminal records is that mobility of the individual is affected. 

9/ 
Only one out of 25 occupations is licensed in all 50 states. 

While those states which license the same occupation generally pro- 
vide for licensing out-of-state applicants by endorsement, reci- 
procity, waiver, or examination, the lack of uniformity in quali- 
fications and procedures in effect further restricts the ease with 

10/ 
which a licensed practitioner may relocate. "The disparity 

between entrance requirements for the same occupation alone could 
seriously limit the freedom of licenses to practice their occupations 
in various parts of the country." In effect, then, the individ- 
ual with a skill and criminal record might find it virtually 
impossible to determine what he might practice and where. Unless ^ 
he had substantial resources for retraining, research, or experi- 
mental relocating, he might find employment unobtainable. Rehabili- 
tation under such circumstances could be impossible. 

Another problem, which can only be briefly touched upon, concerns 
vocational training in correctional institutions. Most institutions 
have wholly inadequate programs for equipping inmates with any skills. 



322 



53 



many being merely of a make-work nature or providing a service only 

utilized by the state, such as making license plates. Where a 

potentially useful program is established, licensing problems may 

interfere. For example, it was reported that hundreds of prisoners 

of the New York City Department of Corrections have been trained 

as truck drivers, plumbers, electricians and bakery workers. Yet 

the Department of Motor Vehicles sometimes denies licenses for 

long waiting periods and many of the unions representing the plumbers, 

12/ 
electricians and bakery workers exclude ex-convicts. 

This brief sketch indicates that licensing procedures and require- 
ments need to be more thoroughly studied as to their effect upon 
rehabilitation of persons with criminal records. Not only do ex- 
convicts need assurance of freedom from unreasonable discrimination, 
but persons with arrest records who have never been found guilty of 
a crime many need similar assurance. 



323 



54 



California, Illinois, and Pennsylvania lead in licensing. 




This chert is reprirtet v.'i*h pprmission of the U.S. 
Department of Labor from Manpower Research Monograph 
No. 11, Occupational Licensing and the Supply of 
Nonprofessional Manpower at 2 (1969) 



324 



55 



Four-fifths of all licensed occupations are 
licensed in 10 or fewer States - 




of states iKensine 

rn 1-10 
wm 11-20 

BS 21-30 



31-40 
4tS0 



while only 4 percent are licensed in 
all 50 States . 




No of States licensing 
■■ I 
I 1 2-49 

mm 50 



This chart is reprinted with permission of the U.S. Department 
of Labor from Manpower Research Monograph No. 11, Occupational 
Licensing and the Supply of Nonprofessional Manpower at 10 (1969) 



325 



56 



Footnotes 



1/ Report, pp. 75-76. 

2/ Idid. , pp. 231-232 

2./ U.S. Census of Populations - 1960, Detailed Characteristics, 
U.S. Summary (Washington: U.S. Department of Commerce, 
Bureau of the Census, 1960), table 202, and State volumes, 
tables 120. 

£/ Occupational Licensing and the Supply of Nonprofessional 

Manpower, Manpower Research Monograph No. 11, U.S. Department 
of Labor, 1969. 

5/ See Appendix E 

6^/ Occupational Licensing and the Supply of Nonprofessional 
Manpower, supra , p. 6. 

2/ The Challenge of Crime in a Free Society , p. 75, 1967. 

8/ Id. p. 77. 

9/ Occupational Licensing and the Supply of Nonprofessional 
Manpower, supra p. 9. 

10/ Id. 

11/ M- 

12/ New York Daily News, 9 July 1970, p. 5. 



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57 



Chapter 5 
Annullment and Expungement of Criminal Conviction 

Introduction 

As we have seen, barriers confront the ex-offender seeking 

employment. Some of these barriers involve governmental action, 

such as employment guidelines (or lack thereof) or licensing 

statutes. Other hurdles result from attitudes of private employers 

who prefer not to hire ex-offenders and from employees who prefer 

1/ 
not to work with ex-offenders. 

It is abundantly clear that a jurisdiction's treament of 
records can have a significant effect upon an ex-offender's employ- 
ment opportunities, and it is equally clear that jurisdictions vary 
considerably in their policies and practices regarding juvenile, 
arrest and conviction records. Since many persons convicted of 
crime are not incarcerated and since virtually all those incarcerated 
are released, today's convicted criminal will be tomorrow's 
jobseeker. Because of the importance of the legal and social 
disabilities flowing from a criminal conviction, much attention 
has been devoted to restoring the civil rights of one convicted 
of crime as well as redefining the status of the ex-offender. 

Every state has some method by which the ex-offender may secure 
the restoration of some of his rights. Some form of legislative or 
executive pardon is available in most states, but pardons are of 
limited value. In some states only the franchise is restored, 
and in others, where all formal civil rights are restored, a pardon 



327 



58 

has little, if any, effect upon the social sitgma attaching to an 

ex-offender. The process by which a pardon is received is often a 

2/ 
cumbersome one, and the legal effects of a pardon are severely 

3/ 
limited. For these reasons, pardon applications are infrequent. 

One survey indicated that in New York in 19 54 (where several thousand 

persons were committed) 176 applications were received and 67 pardons 

granted. North Dakota, North Carolina, and Ohio also reported a small 

4/* 
number of applications for the restoration of rights. 

In view of these difficulties, attention has centered upon 
expungement as a remedy not only to restore the civil rights of 
ex-offenders but also to remove other stigma resulting from one's 
status as an ex-offender. During the last two decades, several 
groups considering the problems of ex-offenders have recommended 
expungement of convictions, but these suggestions have left many 
unanswered questions. 

Perhaps the earliest suggestion of this kind came from the 

Second National Conference on Parole in 1956. The Conference, 

co-sponsored by the United States Board of Parole and the National 

Probation and Parole Association, considered various ways of 

improving parole and enhancing the parolee's chance of successfully 

returning to society. The parolee's loss of civil rights and its ^ 

effect upon his rehabilitation were considered, and the Conference 

concluded: 

"The expunging of a criminal record should be authorized 

on a discretionary basis. The court of disposition should 

be empowered to expunge the record of conviction and disposition 

through an order by which the individual shall be deemed not 

to have been convicted. Such action may be taken at the point 



See p. 125 for a discussion of Minnesota practices. 



328 



59 



of discharge from suspended sentence, probation, or the 
institution upon expiration of a term of commitment. When 
such action is taken the civil and political rights of the 
offender are restored." 5/ 

The desirability of expungement statutes has been recognized 

by the drafters of the American Law Institute's Model Penal Code . 

In 1961 the Institute adopted a model section allowing the sentencing 

court, at its discretion, to enter an order vacating a conviction. 

The court could exercise its authority either when an offender 

"has been discharged from probation or parole before the expiration 

of the maximum term thereof" or "when a defendant has fully 

satisfied the sentence and has since led a law-abiding life for 

i/ 

at least five years." 

The Model Code, like the recommendation of the National 
Conference on Parole, was silent about procedures for obtaining 
such an order, procedures by which such a judgment would be vacated, 
the legal effect of such an order, and the whole range of procedural 
and mechanical problems presented by this unusual device. The usual 
commentaries which arehelpful in explaining other Model Code provisions 
were not included, and there is no evidence of significant debate 
about the questions raised by expungement. The Code is specific 
only as to several limitations on the effects of expungment. Most of 
these restrictions involve the use of a conviction in court proceedings 
(to impeach the defendant as a witness, to sentence him if he is subse- 
quently convicted of another crime, or to prove the commission of the 

7/ 
crime). Also, and most important for this report, such an order only 

operates prospectively and does not require the restoration of any for- 
feited employment; as for future employment, an expungement order "does 
not justify a defendant in stating that he has not been convicted of a 



329 



60 

y 

crime, unless he also calls attention to the order." 

In 1962 the National Council on Crime and Delinquency (formerly 

the National Probation and Parole Association) promulgated the 

following act authorizing courts to annul conviction records: 

"The court in which a conviction of crime has been 
had may, at the time of discharge of a convicted person from 
its control or upon his discharge from imprisonment or parole, 
or at any time thereafter, enter an order annulling, canceling, 
and rescinding the record of conviction and disposition, when 
in the opinion of the court the order would assist in 
rehabilitation and be consistent with the public welfare. 
Upon the entry of such order the person against whom the 
conviction had been entered shall be restored to all civil 
rights lost or suspended by virtue of the arrest, conviction, 
or sentence, unless otherwise provided in the order, and 
shall be treated in all respects as not having been convicted, 
except that upon conviction of any subsequent crime the 
prior conviction may be considered by the court in determining 
the sentence to be imposed. 

In any application for employment, license, or other 
civil right or privilege, or any appearance as a witness, a 
person may be questioned about previous criminal record 
only in language such as the following: 'Have you ever been 
> arrested for convicted of a crime which has not been annulled 
by a court . ? ' 

Upon entry of the order of annulment of conviction, the court 
shall issue to the person in whose favor the order has been 
entered a certificate stating that his bahavior after 
conviction has warranted the issuance of the order, and that 
its effect is to annul, cancel, and rescind the record of 
conviction and disposition. 

Nothing in this act shall affect any right of the 
offender to appeal from his conviction or to rely on it 
in bar of any subsequent proceedings for the same offense." 10/ ^ 

This act allows the sentencing judge the discretion to grant or 

deny an order expunging a conviction, and presumably the ex-offender 

does not necessarily have the burden of applying for such an 

order. The only standards guiding the court's decision are whether 

the order "would assist in rehabilitation and be consistent with 

the public welfare." The order restores to the ex-offender all 

civil rights, but, if any subsequent conviction occurs, the earlier 



330 



61 



annulled conviction may be considered in sentencing. 

In applications for employment or licenses, the Act attempts 
to protect an ex-offender with an annulled conviction, and its 
approach is far better than that of the Model Penal Code , but the 
good intentions of the Act are not translated in any tangible way 
into practice. The lack of specific processes for annulment and 
any means of enforcing its pious declarations are serious deficiencies. 
Moreover, the Act operates only after conviction and actually leads 
to more protection for one convicted than for one arrested and 
not convicted. In any event, the effect of annulment upon arrest 
records is not at all clear. 

Most recently, the American Bar Association (ABA) Project on 
Standards for Criminal Justice in its Standards Relating to Probation 
recommended the following standard: 

"Every jurisdiction should have a method by which the 
collateral effects of a criminal record can be avoided or 
mitigated following the successful completion of a term 
on probation and during its service ." 11/ 

Stressing the irrational and burdensome disabilities placed upon 

ex-offenders, the accompanying commentary recommended judicial 

authority to affect the collateral disabilities resulting from 

conviction. As for the numerous specific problems raised by an 

expungement statute, it concluded: 

"The Advisory Committee is not as concerned with the form 
which such statutes take as it is with the principle that 
flexibility should be built into the system and that 
effective ways should be devised to mitigate the scarlet 
letter effect of a conviction once the offender has 
satisfactorily adjusted ." 12/ (emphasis addedj 

Perhaps nowhere has the problem of an ex-convict been more 
graphically described than in a recent book written by four inmates 
of the Indiana State Penitentiary. Griswold, Misenheimer, Powers 



331 



62 



and Tromanhauser, An Eye For An Eye , (1970) . In Chapter 21, titled 

The Ex-Con, the problems they describe in obtaining and holding jobs 

point up more vividly than any scholarly analysis the need for an 

* 

expunging statute such as the one recommended by this study. 

** 

State Annullment and Expunging Statutes 

Existing state expungement statutes take various forms but 

are generally cumbersome and inadequate. The most comprehensive 

state expungement scheme exists in California, where several 

13/ 
statutory provisions allow some form of expungement. The 

California statutes and their inadequacies have been reviewed 

exhaustively, and it is apparent that these statutes provide 

14/ 
tedious procedures and are of limited scope and effect. They 

have been narrowly construed by judges balancing the rehabilitative 

effects of expungement against the need to protect the public from 

those with expunged convictions. When the debate is framed in these 

terms the need for public protection almost always seems paramount. 

One statute (Cal. Penal Code §1203.45) allows an order sealing 

"the record of conviction and other official records in the case", and 

provides that the "conviction, arrest or other proceeding shall be 

deemed not to have occurred, and the petitioner may answer accordingly 

any question relating to their occurrence." The specificity of this 

statute is commendable, but its scope is severely limited. It applies 

only to misdemeanants under twenty-one years old, who must petition 

the court for such an order. It is expressly inapplicable to 



* See Appendix F for a copy of Chapter 21. ^'■x^ 

** See Appendix G for comparison of state annullment and expunging 

statutes. 



7R-7i2 n - 12 - 22 



332 



63 



narcotics offenses, traffic violations, and various sex offenses, 
and its relationship to other California statutes is unclear. 

Another California statute (Cal. Penal Code §1203.4) applies 
only to those persons completing probation. It allows these ex- 
offenders to withdraw guilty pleas (or have the verdict of guilty 
set aside if they originally pleaded not guilty) . The court "shall 
thereupon dismiss the accusations or information", and the defendant 
is thereafter "released from all penalties and disabilities resulting 
from the offense of crime." This statute, though mandatory, has 

been judicially and legislatively circumscribed and is of limited 

11/ 
applicability. Nevada has a virtually identical statute which has 

16/ 
not been interpreted by the courts. 

North Dakota has a similar statute allowing release from 
all disabilities of a conviction after the offender has successfully 
completed probation. In one respect, it is procedurally clearer 
than similar statutes. It limits access to court records in such 
cases to the clerk of the court, the judges, the juvenile commissioner, 
and the state's attorney. "Others may examine such records and 
papers only upon the written order of one of the district judges." 

A similar statutory scheme exists in Delaware. If the offender 

complies with the terms of his probation, "the plea or verdict of 

guilty entered by or recorded against such offender shall be stricken 

18/ 
from the records of the court. A statute of this sort is 

commendable, but it applies only to probationers. Although the 

statute uses the mandatory "shall", it presents no procedures by 

which a probationer can petition for such relief. It apparently 

applies only to court records, and no sealing procedures are 

enumerated. Unlike the California statute, there are no cases 

interpreting the statute. 



333 



64 



Washington and Utah have statutes allowing favorable treatment 

of successful probationers, and each statute has been subject to 

judicial interpretation. Washington's statute is virtually identical 

in wording to California's (§1203.4), but it sets a discretionary 

rather than mandatory procedure ("the court may thereupon dismiss 

19/ 
the information"). Opinions of Washington's Attorney General 

have held for example, that the statute applies to convicted felons 

M/ 
who wish to run for elected state or county office, but the 

statute's removal of "all penalties and disabilities" does not 

preclude the consideration of such a conviction in later sentencing 

21/ 
the offender to a mandatory minimum sentence. In a recent case the 

Supreme Court of Washington upheld the election of a county sheriff 

22/ 
whose earlier conviction had been annulled under this statute. 

Utah's statute authorizes the court to place any defendant on 

probation, and, if the defendant complies with the conditions of 

his probation, "the court may if it be compatible with the public 

interest either upon motion of the district attorney or of its own 

motion terminate the sentence or set aside the plea of guilty or 

conviction of the defendant, and dismiss the action and discharge 

23/ 
the defendant." The Supreme Court of Utah has viewed the statute 

V 

as "enacted for the purpose of permitting the court under unusual 

24/ 
circumstances and for good cause to expunge the record of crime." 

Utah's courts, like most state courts, have not explored the meaning 

of "good cause", "unusual circumstances", or any of the varied 

problems in defining expungement processes. 



334 



65 



Texas has two statutory provisions which provide for a form of 

expungement. One section authorizes the court upon the termination of 

probation to set aside the conviction and release the defendant from 

25/ 
all future penalties and disabilities. 

Another provision applicable only to misdemeanants provides: 

(a) When the period and terms of a probation have been 
satisfactorily completed, the court shall, upon its own 
motion, discharge him from probation and enter an order 
in the minutes of the court setting aside the finding of 
guilty and dismissing the accusation or complaint and the 
information or indictment against the probationer. 

(b) After the case against the probationer is dismissed 
by the court, his finding of guilty may not be considered 
for any purpose except to determine his entitlement to a 
future probation under this Act, or any other probation 
Act. 

26/ 
This provision, however definitive its effect, applies only to 

defendants who apply in writing to the court for such treatment. 

These defendants must have never been convicted of a felony 

or a misdemeanor for which a jail term could be imposed, and 

they must not have been granted probation during the preceding 

27/ 
five years. This statute's narrow applicability and procedural 

difficulties are significant defects. 

The Wyoming statute provides for parole before sentence. It 

is applicable to most felonies where there have been no previous 

felony convictions. The judge may consider whether it is a first 

offense, "the extent of moral turpitude involved," and the 

reputation of the defendant; he may then "parole" the defendant 

for as long as five years. After one year or any time thereafter, 

the court "shall have the power in its discretion" to terminate 

the parole, discharge the defendant, "and annul such verdict or 

28/ 
plea of guilty." No procedures are provided, no cases interpret 



335 



66 



the statute, and there is no evidence of its use. 

New Jersey permits the court to order "the clerk of such court 

to expunge from the records all evidence of said conviction." Also, 

"the person against whom such conviction was entered shall be forthwith 

thereafter relieved from such disabilities as may have heretofore 

existed by reason thereof." The statute apparently contemplates the 

full restoration of civil rights, but it applies only when the original 

sentence was suspended or was a fine of $1,000 or less. The 

petitioner must have no subsequent conviction and can apply for 

this relief after ten years from the date of his conviction. The 

county prosecutor and police chief are notified of all such petitions 

and may object. The process is expressly not available to those 

convicted of treason, anarchy, all capital cases, kidnapping, perjury, 

carrying concealed or deadly weapons, rape, seduction, arson, robbery, 

29/ 
or burglary. 

One needs no statistical survey to conclude that the New Jersey 
statute is used sparingly. It has, however, been subject to inter- 
pretation and limitation. Several Attorney General Opinions have 

stated that an order under this statute does not have the attributes 

30/ 
of a full pardon. Cases have also limited its effectiveness; 

31/ 
a recent case called for its "revision and clarification". *• 

Michigan's recent (1965) statute applies only to non-capital 

offenses committed before the defendant's twenty-first birthday and 

does not apply to persons committing more than one offense. Five 

years after the conviction, one may petition for an order "setting 

aside the conviction". The prosecutor may contest the motion, and 

the court may require the petitioner to file supporting affidavits. 

"If the court determines that the circumstances and behavior of 



336 



67 



the applicant from the date of his conviction to the filing of the 

motion warrant setting aside the conviction, it may, in its discretion, 

32/ 
enter an order for Scime." The effect of such an order is unclear, but 

the statute states that, upon the entry of such an order, "the 

applicant, for purposes of the law, shall be deemed not to have been 

33/ 
previously convicted." 

Minnesota provides for expungement by administrative action of 

the State Board of Pardons. Any first offender may, upon completion 

of the sentence, petition the Board for a "pardon extraordinary." 

If the Board finds that he "is of good character and reputation", 

it may grant such a pardon. As for its effect, "[s]uch pardon 

extraordinary, when granted, shall have the effect of restoring 

such person to all civil rights, and shall have the effect of 

setting aside the conviction and nullifying the same and of purging 

such person thereof and such person shall never thereafter be required 

to disclose the conviction at any time or place other than in a 

34/ 
judicial proceeding thereafter instituted." 

The Minnesota statute is broad in scope, covering all first 

offenders and not expressly excluding any crimes. It also attempts 

to have vast effect by restoring "all civil rights" and by 

implicitly sanctioning non-disclosure of such conviction on all job 

applications. The statute, like others, does not consider arrest 

records; and its administrative mechanism may not be effective. 

But if implemented and expanded, it could be an effective tool for 

ex-offenders. 



337 



68 



Findings and Reconimendations* 

1. Findin g — Many expungement statutes provide no mechanism 
by which a conviction may be expunged thus they often have been found 
to be not effective. Procedures may be difficult, judicial authority 
may be discretionary and rarely exercised, and few ex-offenders may 
know of a statute providing that they must petition for expungement. 
Most statutes apply only in limited cases and some exclude a variety 
of listed offenses while others apply only to those completing 
probation or receiving suspended sentences . 

Recommendation -- It is clear that as to criminal conviction, 
there is still a vast need for some means by which the debilitating 
effect of a criminal record may be lessened. An effective state 
expungement practice is by no means the only method by which ex-offenders 
may be aided, but changes in this area are sorely needed. 

Some have suggested that because existing expunging statutes 

do not work, and because public attitudes are so important, that 

statutory reform is not a viable method of removing obstacles to 

35/ 
employment. The Institute recognizes the importance of public 

attitudes and rehabilitative efforts, and is not suggesting that 

the sole answer is statutory and administrative reform. But a proper ^ 

legal and administrative structure is a requirement before other 

necessary steps can be effective. It does little good to train an 

individual for an occupation if a license to practice cannot be 



See Chapter 2, Juvenile Policies and their effectiveness for 
a discussion of juvenile problems in this area and the draft 
of a model use of juvenile records statute. See also Chapter 
3 Civil Service Statutes and Rules for discussion the draft of 
a Model Civil Service Conviction Statute. 



338 



69 



obtained or employers are unwilling to hire ex-offenders. In the 
latter case legislation restricting the use of criminal records when 
a job is at stake will at least prevent the legal structure from 
obstructing bona fide efforts at obtaining employment. 

2. Finding — Existing expunging statutes generally do not 
consider whether the procedure should be automatic or discretionary, 
mandatory or permissive, whether ex-offenders are to be notified 
about expungement and its affect, or whether employers are to be 
prevented from inquiring about expunged convictions. There is little 
evidence that expungement has effectively aided the ex-offender. 

Recommendation — Some guidelines may be suggested. Most statutes 
provide that an ex-offender must petition for relief, which may be granted 
at the court's discretion. This procedure clearly limits the 
utility of this remedy to those ex-offenders who are aware of it, 
articulate enough to petition for it, and energetic enough to 
persevere through courtroom procedures. (Such a remedy may also 
be limited to those who can afford an attorney.) These defendants 
are least likely to need expungement and are more likely to overcome 
the disabilities of a conviction record. 

There is a middle ground between automatic expungement and 

proceedings which the ex-offender must initiate, depending solely 

upon the ex-offender's initiative. Formal notice of the termination 

of probation or parole could be accompanied by a notice that the 

probationer or parolee could petition for expungement. Specific 

36/ 
directions could be included in the notice. Where the relief to 

be granted pertains to persons arrested but not convicted, it could 

entail giving to them a formal printed notice of their rights to 

seek expungement or sealing of their criminal record. 



339 



70 



3. Finding — Probation and parole officers are rarely involved 
in the expungement process. 

Recommendation — Should the probationer not utilize the expunge- 
ment procedure, petitions could be authorized from probation and parole 
officers as a back-up measure. These officers could, with a minimum 
of difficulty, set regular schedules as to when they would consider filing 
such petitions. For example, they might consider filing such petitions 

one year after the completion of probation or parole and two years after 

37/ 
mandatory release from imprisonment for a felony. The Institute 

has opted for authorizing proceedings immediately after discharge from 

probation or parole and released from imprisonment on the grounds that 

legal obstacles to work should not slow up the rehabilitative process. 

Vesting this authority in probation and parole officers could well 

make expungement an integral part, in fact the "graduation ceremony" 

of the rehabilitative process, and ex-offenders would be more likely to 

be made aware of expungement. Also, these officers ideally would have 

the resources for the social investigation demanded by courts. 

4. Finding — Most statutes do not provide meaningful guide- 
lines for determining when expungement should occur. 

Recommendation — Guidelines which could be employed might include 
lack of subsequent convictions, no pending criminal proceedings, and the 
usual indices of efforts at rehabilitation. 

5. Finding — Most expungement statutes are unclear as to the 
meaning and effect of expungement. 



340 



71 



Recommenda t ion — Most existing. Expungement laws do not provide 

for the destruction and obliteration of court and police records 

38/ 
because there are many uses for such records. If expungement 

statutes limit the use of criminal records, destruction or obliteration 

becomes unnecessary. The statute could provide that when the conviction 

is annulled or expunged all civil rights are restored to the petitioner. 

It could further provide that license and job application forms may ask 

only about convictions which have not been expunged . Restricting such 

questioning may be a far more effective remedy than placing upon the 

job seeker the burden of concealing a part of his past. 

6. Finding — Most expungement statutes do not explicitly describe 
how courts and police departments are to handle expunged records. 

Recommenda tion — Provisions should require courts and police 
departments to seal expunged records and prohibit their divulgence 
to any public or private employer.* Under such a provision only a 
court hearing a criminal case involving that particular ex-offender's 
involvement in a subsequent crime or a police department investigating 
a crime could gain access. 



Responses to any inquiries should not be different from those 
made about persons who have no criminal records. 



341 



72 

Expungement - Footnotes 

1/ See e.g. , Wyle, The Employment of Released Offenders , 25 
Probation , Oct., 1946; Harris, Changing PublicAttitudes 
Toward drime and Corrections , 3l^Ped. Pro'b., Dec, i9&8; Hannum, 
Problems ot Getting Jobs tor Parolees , 6 N.P.P.A.J., Jan., 1960; 
Note: Discrimination on the Basis of Arrest Record , 56 Cornell 
L. Rev. 470 (1971) . See also Pownall, Employment Problems of 
Released Prisoners (1969), a report prepared for the 
Manpower Administration, U.S. Department of Labor. 

2/ Rubin, The Law of Criminal Conviction 609 (1963) . 

3/ Id., 605-10. 

4/ Id., 636-7. 

V National Conference on Parole, Parole in Principle and 
Practice , 137-39 (1956) . 

6/ Model Penal Code, §306, 6 ( 2) (Proposed Official Draft, 1962). 

7/ Id., §306.6 (3) , (b) , (c) , (d) , and (e) . 

8/ Id., §306.6 (3) (a) . 

9/ Id., §306. 6(d) (f) . 

10 / Annulment of a Conviction of Crime: A Model Act, 8 
Crime and Delinquency 97, 100 (1962) 

11 / American Bar Association Project on Standards for Criminal 
Justice, Standards Relating to Probation , §4.3, (Approved 
Draft, 1970) . 

12/ Id., p. 56. 

13/ See e^. , Cal. Penal Code , §§1203 . 4-4 (a) , 1203.45 (West 
Supp. , 1968) . 

14 / See e.g.. Note, The Effect of Expungement on a Criminal 
Conviction , 40 S. Cal. L. Rev . 127 (1967) ; Booth, The" 
Expungement Myth , 38 L.A. Bar Bull . 161 (1963); Comment, ^ 
Criminal Records of Arrest and Conviction: Expungement 
from the General Public Access^ 3 Cal. W.L. Rev . 121 ri967) , 
Baum, Wiping Out a Criminal or Juvenile Record , 40 Cal . 
S.B.J . 816 (1969) . 

15 / Note, The Effect of Expungement on a Criminal Conviction , 
40, S. Cal. L. Rev . 127, 133-143 (1967). 

16/ New Rev. Stats. §176.225. 

17/ N.D. Code §12-53-18 (1960) . 

18/ Del. Code, title II, §4321 (19 supp.). 



342 



73 



19 / Wash. Rev. Code Ann. §9.9 5, 2 40 

20/ Ops. Atty. Gen. 65-66, No. 66. 

21 / Ops. Atty. Gen. 59-60 No. 50. 

22/ Watsen v. Kaiser, 443 P. 2d 843 (1968) . 

23/ Utah Code Ann . §77-35-17. 

24_/ State v. Schreiber, 245 P. 2d 22, 224 (1952) 

2 5 / Tex. Code Crim. Proc. Ann . §42,12(7) 
26/ Tex. Code Crim. Proc. Ann . §42.13(7) 

27/ Tex. Code Crim. Proc. Ann . §42 . 13 ( 3) (a) ( 1-5) . 

28/ Wyo. Comp. Stat . §7-315 (1957) . 

29/ N.J. Stat. Ann. §2A:164-28 (1958). 

30 / See , e.g . , Waterfront Commission of New York Harbor v. 

Pasquale, 65 N.J. Super. 498, 168 A, 2d 246 (1961); State 
V. Garland, 99 N.J. Super. 383, 240 A. 2d 41 (1968). 

31 / State V. Chelson, 104 N.Y. Super. 508, 511, 250 A. 2d 445, 

(1969) . 

32/ M^ch. Stat. Ann . §28.1274 (101) (1969 Supp.). 

3_3/ Mich. Stat. Ann §28,1274 (102) (1969 Supp.). 

24/ Minn. Stat. Ann . §683,02(2) (1969 Supp.). 

3 5 / See Kogon and Loughery, Sealing and Expungement of Criminal 

Records — The Big Lie , 61 J. Crim. L.C. & P.S. 378 (1970), 

36 / The Standards Relating to Probation provide for formal notice 
of termination of probation. SS4.]. 4.2 and commentary 
at pp. 52-54. See note 11 supra . 

37 / Mandatory release occurs when the term of imprisonment, less 

good time, requires the prisoner to be released. This usually 
means that parole had been considered but not granted. 

38 / If there is a subsequent conviction the court should have 

the information as part of a presentence report. Police may 
use some of the information for investigating certain crimes 
where the method of operation (MO) is a key to solving the 
crime. 



343 



74 



MODEL ANNXILLMENT AND SEALING STATUTE* 

Section 1. In all cases wherein a criminal conviction has been 
entered against any person, the person so convicted may petition the 
court wherein such conviction was entered for an order annulling and 
sealing the record of such conviction after termination of probation 
or parole supervision, or after final discharge or release from any 
term of imprisonment. He may present such petition in person, by an 
attorney, or by a probation or parole officer and the expenses coin- 
cident with this petition shall be borne by the state. The court 
shall grant such an order unless in the opinion of the court the order 
would not be consistent with the public interest. The court shall 
explicitly state in writing any reasons for not granting an order of 
annulment and sealing. A denial of such an order shall be appealable 
by the petitioner and the burden of proof for sustaining the denial 
shall lay upon the state. 

Section 2. Departments of probation, parole or corrections 



The expungement statute does not grant relief to persons 
arrested but not convicted. Several states have statutes 
providing some form of relief for such persons. The 
Institute anticipates this model statute being coupled 
with the recommendation that no arrest record shall be 
released for purposes relating to employment, license, 
bonding, or any civil right or privilege (Chapter 8) . 
Should an arrest record statute not be adopted, then 
expungement provisions should include providing relief 
for persons arrested but not convicted. 



344 



75 



exercising supervision or custody over any convicted person shall 
inform such person in writing of the completion of probation, parole 
or imprisonment, and the termination of supervision or custody. 
Where this person has not reached the age of legal majority a copy 
shall also be given to his parents, guardians, or others similarly 
situated. Information concerning annullment and sealing rights shall, 
in non-technical and clearly understandable language, be included in 
this written communication. If within two years, following termination 
of probation or parole and after final discharge from imprisonment or 
mandatory release, an order annulling and sealing the record of con- 
viction has not been granted, and no subsequent criminal conviction 
has occurred, the court shall enter such an order on its own motion. 
The court shall attempt to notify the person whose record has been 
annulled and sealed of this motion and its effect on his legal status. 

Section 3. Upon the entry of such an order, petitioner shall be 
released from all penalties and disabilities resulting from the offense 
or crime of which he has been convicted. Provided that in any sub- 
sequent prosecution of such defendant, such prior conviction shall have 
the same effect as if it had not been annulled. Nothing in this act 
shall affect any right of the offender to appeal from his conviction or 
to rely on it in bar of any subsequent proceedings for the same offense. 

Section 4. Upon granting of the motion to annul the petitioner's 
conviction the court shall order the court records physically sealed 
and removed to a separate location and maintained in a confidential 



345 



76 



status. The court shall notify local and state law enforcement 
agencies [of its local jurisdiction] and the Federal Bureau of 
Investigation of the order annulling and sealing the conviction. 
This notification shall direct these agencies not to divulge and 
release information about the conviction except as otherwise pro- 
vided in this Act. Upon receipt of this notification, these agencies 
shall take whatever action is necessary to ensure compliance with 
this order and shall then notify the court that action has been taken. 
The court shall supervise this action and response and may hold in 
contempt of court anyone failing to abide by its order. Except under 
the following circumstances the court's motion and receipt of such a 
notice shall thereafter prohibit the court and law enforcement agencies 
from divulging the record of conviction or fact of annulling and 
sealing. 

(a) inquiries received from another court of law? 

(b) inquiries from an agency preparing a presentence 
report for another court; 

(c) inquiries from law enforcement agencies where the '' 
request for information is related to the investigation of a 

crime or a position within that agency; and 

(d) inquiries from an agency considering the person for a 
position immediately and directly affecting the national security. 



346 



77 



Information about the annulled conviction may not otherwise be 
released when the request for information is related to an application 
for employment, license, bonding or any civil right or privilege. 
Responses to such inquiries shall not be different from responses 
made about persons who have no criminal records. 

Section 5. In any application, interview, or other form of 
evaluation process for employment, license, bonding or any civil right 
or privilege, with only the exceptions enumerated in section 4, a 
person may be questioned about previous conviction of crime only in 
language such as the following: "Have you ever been convicted of a 
crime which has not been annulled or sealed by a court?" 



347 



78 



Chapter 6 
National Survey of Hiring Practices and Policies 

Introduction 

How government agencies deal with job applicants and with 
criminal records is approached at different levels in this study. 
The Institute has observed what some jurisdictions do; asked many 
others to report what they do; and analyzed statutes, rules and job 
applications . 

Because all practices could not be observed nor could all 
jurisdictions be visited inquiries were made via mail questionnaires. 
That is, the agencies were asked to report their practices. Clearly 
this method may not produce all the data. But, equally clearly, its 
necessity was dictated by the scope of the project. This chapter 
deals with the practices reported to us through two questionnaires 
(police and corrections, and civil service).* 
Response to the Questionnaires 

A total of 554 jurisdictions were sent an initial inquiry 
requesting information about their hiring practices. On the basis 
of the returns from this initial probe and the examination of 
statutes and rules, two questionnaires were designed; one for use 
with police and correctional agencies (the PC questionnaire) , the 



See Appendix A for a statement of methodology. 



348 



79 



other for civil service and other government agencies (the CS 
questionnaire) .* 

A combined total of 931 of these two questionnaires were sent 
to 524 different jurisdictions (49 state, 260 city, and 215 county) . 
The return rates were 64% (337) for the CS questionnaire and 52% 

(210) for the PC questionnaire. Forty three states, 183 cities 

1/ 
and 112 counties were represented. Questionnaires were returned 

by 117 police agencies and 93 correctional agencies. 

The Reported Practices 

The potential gap between government responsibilities mandated 
by law and what they do in practice poses a constant threat to the 
successful execution of social policy. Improper execution of policy 
may stem from different factors: Deliberate nonenforcement; non- 
enforcement because of ignorance or inertia; lack of funds; organized 
opposition; inefficiency; misunderstanding; or over-enforcement. The 
possibilities for bureaucratic distortions are virtually unlimited. 
It is therefore imperative that both the practice and the theory be 
studied. 

The critical employment practice of government which requires an 
applicant to divulge information about his past criminal record on 
the job application form has been discussed in Chapter 1, This chapter 
discusses practices as reported 



* Educational systems and government financed hospital systems were 
excluded from consideration. 



349 



80 



via questionnaire. Such self-reports may be distorted or information 
may be withheld. The results herein presented should be viewed with 
this awareness. 

Agencies which reported that they hire individuals with criminal 
records were asked what types of jobs these individuals held at the 
time of the survey. Eighty-seven cities, thrity-seven counties, 
eight states, thirty-three police agencies and forty-two correctional 
agencies responded. The types of job held by persons with criminal 
records are shown in Table 3. 



350 



81 



Table 3 



Types of Jobs Held By Persons with Criminal Records 
By Government Agency 



TYPE AGENCY 



TYPE JOB 



NUMBER OF AGENCIES 
REPORTING EMPLOYMENT 
OF ONE OR MORE PERSONS 
WITH CRIMINAL RECORDS 



PERCENT BY 
TYPE OF AGENCY 



States, Cities, 

Counties, 

COMBINED 



Police 



Correctional 



Unskilled 


119 


Skilled 


82 


Clerical 


68 


Professional 


37 


Unskilled 


17 


Clerical 


12 


Patrolman 


21 


Social Worker 


1 


Coiinselor's Aide 


1 


Professional 


4 


Unskilled 


17 


Clerical 


15 


Custodial 


2 


Social Worker 


13 


Counselor's Aide 


9 


Professional 


15 



90.1 
62.1 
51.5 
28.0 



51. 
36. 
63. 

3. 

3. 
12. 



40.4 
35.7 
4.7 
30,9 
21.4 
35.7 



* Percentages based on number of 132 responding, city, county and 
state government agencies 

** Percentages based on number of 33 responding police agencies 

*** Percentages based on number of 42 responding correctional agencies 



351 



82 



Table reveals that governments generally employ persons with 
criminal records in unskilled positions. Yet over a quarter of the 
responding agencies said they employ persons with criminal records 
in professional positions. 

Police and correctional agencies report employing fewer persons 
with criminal records. But as many are employed in professional and 
skilled as in unskilled positions. Almost two-thirds of the responding 
police agencies have some patrolmen with some kind of criminal record. 

The fact that local and state governments most frequently en^loy 
persons with criminal records in unskilled positions can be inter- 
preted in two ways. 1) It may be that there is a conscious policy 
of refusing better jobs to persons with criminal records; or 2) as 
the Pi-esident's Crime Commission and other studies have documented it 
may be the fact that most persons with criminal records are ill-educated, 

from the lower socio-economic group, and have irregular and unre- 
warding job backgrounds. Under such circumstances many of these 
persons may not be qualified for skilled or professional employment. 
Whichever approach one takes merely points up the need for programs 
which train persons for meaningful jobs, and the necessity of 
mitigating the effect of a criminal record on a person's job possi- 
bilities. 

Agencies which said they hire persons with criminal records 
were asked about measures, if any, to obtain information about 
applicants from law enforcement agencies. Agencies were asked to 



352 



83 



indicate the types of information they used in evaluating applicants. 
Table 4 lists the kinds of information and the number of agencies 
reporting that they request such data. 

Table 4 



TYPES OF INFORMATION REQUESTED BY GOVERNMENT 
EMPLOYERS FROM LAW ENFORCEMENT AGENCIES REGARDING 
JOB APPLICANTS 



Type of Information 



Type Agency 



Used 
No. 



Not Used 
No. % 



Photo of applicant 
requested and referred 
to local police 



Photo of applicant 
requested and referred 
to FBI 



Fingerprints taken 
and referred to local 
police 



Fingerprints taken 
and referred to FBI 



City 


9 


9.8 


82 


90.2 


County 


3 


7.1 


39 


92.9 


State 








11 


100 


Police 


20 


41.6 


28 


58.4 


Correctional 


3 


5.3 


53 


94.7 


City 


5 


5.6 


85 


94.4 


County 


4 


9.3 


39 


90.7 


State 








11 


100 


Police 


11 


22.9 


37 


77.1 


Correctional 


4 


6.2 


52 


93.8 


City 


48 


51o6 


45 


48.4 


County 


13 


30.2 


30 


69.8 


State 


2 


18.1 


9 


81.9 


Police 


32 


68.2 


15 


31.8 


Correctional 


11 


19.6 


45 


80.4 


City 


42 


45.1 


51 


54.9 


County 


21 


48.8 


22 


51.2 


State 


4 


36.3 


7 


63.7 


Police 


38 


80.9 


9 


19.1 


Correctional 


21 


37.4 


35 


62.6 



353 



84 



Table 4 (continued) Used 



All applicant's names 


City 


57 


automatically referred 


County 


23 


to local police or FBI 


State 


5 




Police 


39 




Correctional 


30 


Contact with parole 


City 


19 


officer 


County 


13 




State 


5 




Police 


5 




Correctional 


10 


Contact with probation 


City 


18 


officer 


County 


14 




State 


5 




Police 


6 




Correctional 


11 



61.9 


35 


38.1 


53.5 


20 


46.5 


45.4 


6 


54.6 


81.4 


9 


18.6 


53.6 


26 


46.4 


23,1 


63 


76.9 


31.7 


28 


68.3 


41.7 


7 


58.3 


10.9 


41 


89.1 


18.2 


45 


81.8 


21.9 


64 


78.1 


35.0 


26 


65.0 


41.6 


7 


58.4 


11.7 


45 


88.3 


20.0 


44 


80.0 



Table 4 reveals that the practice of asking for criminal 
record data about job applicants is widespread. The type of infor- 
mation most frequently requested is a name check with the local police 
or the Federal Bureau of Investigation. Second is fingerprints referred 
to local police or the FBI. This supports a common belief that the 
practice of police referrals is widespread, although it may be used 
less than is commonly believed. 

Table 5 lists the number of types of information used by government. 
The mean number of types of information for all responding agencies 
was 2.4. 



354 



85 



Table 5 
Numbers of Information Types Used by Government Employers 



No type requested 
One type used 
Two types used 
Three types used 
Four types used 
Five types used 
Six types used 
Seven types used 



# of agencies 
making response 



18 
53 
32 
31 
12 
12 
3 
2 



Percentage of 
Responding Agencies 



11% 
31% 
18.7% 
18% 

7% 

7% 

2% 

1% 



The Reported Policies 

All agencies were asked whether they have restrictions on hiring 

persons with criminal records » They were requested to classify their 

hiring policies as being one of three types: unrestricted, partially 

restricted or totally restricted (no hiring of persons with criminal 

records) . Their responses are tabulated in Table 6„ 

Table 6 

GOVERNMENT HIRING POLICIES REGARDING 
PERSONS WITH CRIMINAL RECORDS 



Type Government 
Agency 



State 
County 
City 
Police 
Corrections 
Total 



Number of Agencies with Policy 



Type Policy 
Unrestricted Partially Restricted Totally Restricted 



4 (31%) 
8 (14%) 

17 (15%) 

5 (5%) 
24 (28%) 
58 (15%) 



8 (63%) 

37 (69%) 
84 (76%) 
30 (28%) 

38 (45%) 
197 (54%) 



1 (6%) 

9 (16%) 

9 (9%) 

71 (67%) 

23 (27%) 

113 (31%)2/ 



355 



86 



Table 6 indicates that most agencies follow a partially 
restricted approach, except for the police, who are almost totally 
restricted^ The question relating to restrictions on hiring was 
followed by a detailed question listing the types of criminal records 
which could be grounds for not hiring, ranging from a juvenile record 
to conviction of a felony. If the agency or jurisdiction responding 
checked more than one type of record the least serious of the 
records checked was tallied. This procedure, it was felt, would show 
whether or not agencies rely upon records which reflect a conviction. 

The respondents were instructed to check all records used by 
their agencies as grounds for not hiring „ Thus the results of this 
inquiry as presented in Table 7 represents the most restrictive hiring 
policies of the agencies and jurisdictions o The rank order of 
seriousness used in coding the responses to this question was as 
follows: juvenile record (least serious) ; arrest for a misdemeanor; 
charged with a misdemeanor; convicted of a misdemeanor with sentence 
suspended; convicted of a misdemeanor with no suspension; arrest for^ 
a felony; charged with a felony; convicted of a felony with sentence 
suspended; convicted of a felony with no suspension (most serious type 
of record, ) * 



It is arguable that a different rank order might have been used. 
For instance, conviction of a misdemeanor could have been regarded 
more seriously than arrest for a felony. 



356 



87 



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358 



89 



The results in Table 7 provide interesting contrasts. For 
instance, the police have relatively rigid and more restrictive 
policies. Thirty-one (27.9%) of the police agencies responding 
indicated that a juvenile record would be a ground for not hiring. 
Cities, counties and correctional departments indicated that this 
would be an extremely low factor in grounds for not hiring, ranging 
from 3.3% to 4.1%.* Eleven (10%) of the police agencies responding 
use an arrest for a misdemeanor as a grounds for not hiring. In 
contrast, neither cities or counties use this as a ground for not 
hiring, and only one correctional department (1.4%) considers ito 

Under these categories (juvenile record and charge or arrest 
for a misdemeanor) almost 40% of responding police agencies do not 
hire, as contrasted to corrections agencies, counties and cities, 
at 5.6% or under o When you add the category of a criminal record 
as an absolute bar to employment (nine (7.9% of the responding police 
agencies) almost half of all such police agencies use these minimal 
criminal records as a grounds for not hiringo This strict approach 
differs from correctional agencies ten (13 „ 9%) stating that a f;riminal 
record is an absolute bar to employment) , Thus 20% of all 



It should be noted that respondents from all jurisdictions and 
agencies reporting the use of juvenile records as grounds for 
not hiring stressed that the juvenile record would have to be 
for a serious offense (usually a felony if committed by an 
adult.) 



359 



90 



responding correctional agencies use these minimal criminal records 
as an absolute bar or grounds for not hiring. 

Counties and cities have a more flexible policy, but 6 (10.9%) 
of the responding counties use a criminal record is an absolute bar 
to employment, substantially higher than the cities 3 (2.5%)* 

It is perhaps understandable that the police are more sensitive 
than other governmental agencies in their attitudes towards the 
hiring of people who have any kind of criminal record. To a lesser 
degree this feeling may also be present in correctional departments, 
although recent trends in correctional treatment have caused cor- 
rectional treatment have caused correctional administrators to become 

4/ 
more amenable to the use of ex-offenders in treatment programs. 

Perhaps the most important finding is the high number of responses 
by cities, counties and correctional agencies indicating vagueness 
on the issue of hiring individuals with criminal records. This is 
reflected in the high number of responses in the category of "specific 
grounds undetermined"; cities, 61 (50.4%); counties 32 (58.2%) and 
correctional agencies 33 (45.8%) . Police responses were so specific^ 
that only three (2.6%) of responding agencies could be categorized as 



See Table 6 on p. , where 9 cities and 9 counties report using 

a criminal record as an absolute bar. 



360 



91 



being unable to give specific grounds for not hiring an applicant. 

These responses could reflect basic police rigidity of the 
police. It could also reflect an image which each of these juris- 
dictions and agencies believes it should provide to interested viewers. 
In any event, there is virtually no way of evaluating such responses 
without an intensive look at the jurisdiction or agency. Some cities 
and counties responded that no persons with criminal records had been 
hired in their jurisdiction. Others went so far as to say no one with 
a criminal record had ever even applied for a job. What would happen 
if a qualified applicant with a record applied is problematical.* 

If we total all the grounds for not hiring which stop short of 
an actual conviction we find that 12=5% of the cities, 20% of the 
counties, 25% of the correctional agencies, and 54=4% of the police 
departments use it as grounds for not hiring. Add on the high 
percentage for unspecified grounds in cities and counties and you 
arrive at a combined percentage for an absolute bar and a potential 
bar (62.9% for cities; 78.2% for counties). Another category, "pattern 
of criminality" should also be considered. No cities reported this 
to be a factor in their hiring processes? 4 counties (7.2%); 4 cor- 
rectional agencies (5.6%) and 2 police departments (1.5%), indicated 
that it was a grounds for not hiringo Several respondents made it 



On site experiences indicated that jurisdictions are unable 
to say how many individuals with records have been hired. 
From numerous interviews we conclude that they are few in 
number and largely restricted to unskilled jobs. 



361 



92 



clear that patterns of arrest records would be considered tinder this 
category. 

The Institute believes that these findings, combined with the 
findings of Chapter 1, Analysis of Job Application Forms, and Chapter 
7 (site visits) document that records short of conviction raise 
significant obstacles to applicants for jobs. It points to the need 
for action by the Federal Government concerning the use of arrest 
records (Chapter 8) . 
The Impact of the Practices and Policies 

The most valid and accurate measure of the practices and policies 
of government agencies regarding employment of persons with criminal 
records would have to be obtained through in-depth agency studies. 
In particular, it would be desireable to know the acceptance (or 

rejection) rates or the promotion (or demotion or "special handling") 

5/ 

rates of various agencies for applicants with criminal records. 

This was not possible in this project; even the few in-depth probes 
of specific jurisdictions were not meant to obtain such detailed 
information. 

A significant finding was that most agencies do not have this 
statistical information available or that the information is avail- 
able - but not usable or withheld. The most likely interpretation 
of the consistently low responses to questions which required such 
statistics ia that the information is simply not compiled. This 



362 



93 



interpretation is supported by the site visit findings indicating 
minimal policy awareness and no uniform practices. Typically, 
personnel representatives handle each case on an ad hoc basis o This 
is an important finding because it reveals a lack of any rational 
basis for instituting, continuing or modifying administrative policies. 

Table 8 suggests that few people with criminal records "apply" 
for jobs. It is possible that many more persons initiate applications 
for employment but do not complete them when they see questions about 
previous arrests or convictions. Interviews with parole and probation 
officers in one jurisdiction indicated this was not an uncommon occur- 
ence. The chilling effect of such questions without any explanatory 
material could cause many potential applicants to quietly screen them- 
selves out. Furthermore, the "reputation" an agency receives by 
asking such questions may be transmitted by word of mouth, thus other 
persons may not even bother to start the application process, knowing 
in advance what they will find. Interviews with several officials of 
a minority self-help program substantiated this problem, in part 
because they gave this advice themselves. 



363 



94 



Table 8 



Number of Job Applicants with Criminal Records * 
By Type of Government Agency for One Year Period 



NUMBER OF APPLICANTS 
WITH CRIMINAL RECORDS 



TYPE OF AGENCY 



NUMBER OF AGENCIES 
REPORTING 



5 or less 



State 

County 

City 

Police 

Corrections 



3 
18 
18 
47 
37 



6 to 10 



State 

County 

City 

Police 

Corrections 




3 
9 
16 
9 



11 to 30 



State 

County 

City 

Police 

Corrections 



1 
7 
9 
6 
9 



31 to 100 



State 

County 

City 

Police 

Corrections 




3 
10 
3 
3 



over 100 



State 

County 

City 

Police 

Corrections 






2 




The one year periods are not congruent. Agencies were allowed 
to use either the last fiscal or the last calendar year preceding 
the survey. 



7H-549 n - 7? - 54 



364 



95 



Assessment of Work Characteristics of Employees with Criminal Records 

Statements by agencies comparing eirployees with criminal records 
to other employees must be regarded with caution „ Such assessments may 
amount to little more than the opinion of a few people based on their 
contact with an unrepresentative sample of employees. An additional 
bias may be introduced in agencies which do not systematically keep 
abreast of criminal records of their employees. The criminal record 
of an employee may come to a supervisor's attention only under adverse 
or notorious conditions. 

With these considerations in mind one might expect comparisons to 
be generally unfavorable for the employee with the criminal record. 
But the few responses — 66 city, county, and state agencies, 20 police 
and 30 correctional agencies were not unfavorable to the employee with 
the criminal record. 

The agencies were asked whether employees with criminal records 
were better than, the same as, or worse than other